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Fair Use is a Statutory Privilege, Not a License

Co-author Gerald M. Levine

The U.S. Supreme Court has described fair use as “a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.” The privilege is statutory with a common law background. The question often put is, How much can the taker use without violating an author’s copyright? The answer is, No more than is considered fair. The fair use defense “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster,” Iowa State Univ. Research Found., Inc. v. American Broadcasting Cos., 621 F.2d 57, 60 (2d Cir. 1980). What is considered fair is measured in part by the taker’s status (a journalist, teacher, citizen) and his or her purpose in using another’s expressive content.

The Copyright Act identifies six examples of fair use purposes for taking (the statute uses the phrase “such as”), namely “criticism, comment, news reporting, teaching, scholarship, or research.” If any such be the purpose, then the taking is assessed by considering

(1) the … character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted word as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Takings for criticism and comment which may also raise First Amendment issues include creating “new ideas out of the old,” effectively transforming the old into something new. Parody would be an example that qualifies as fair use under a transformative use defense as may combinatory or reimagined works, although they would not be “presumptively fair.” In other words, the taking would still have to be judged on a “case by case” basis, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 581 (1994), but parody “has an obvious claim to transformative value” and can therefore constitute fair use. The Court continued that it “would not be fair use if the purpose of the borrowing were to avoid the drudgery in working up something fresh.” In lay language we would call this plagiarism and when noted publicly has resulted in works being withdrawn from the market and pulped.

Other cases have established that copying verbatim from a copyrighted work weighs heavily against a finding of fair use. A recent case in New York pitted the publisher and author against a blogger who posted 21 pages of a book that it claimed were “leaked excerpts.” The U.S. Supreme Court held in Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 565 (1985) that reproducing portions of a copyrighted work verbatim is evidence of the qualitative value of the copied material and works against a finding of fair use. These cases generally involve significant takings of which a recent example is Salinger V. Colting, 641 F. Supp.2d 250, 256 (S.D.N.Y. 2009), affirmed 607 F.3d 68, 80 (2d Cir. 2010) .

The above cases, though, are in the magna category, sufficient to justify the cost of commencing an infringement of copyright action. They are large takings. Not surprisingly, there are few cases of small takings that hover on the boundary of fair use so there is no guidance on quantity of taking to be fair. There is, of course, a reason for this, which is that the benefit received from mounting an infringement action may not be regarded as worth the cost. There is no mathematical formula for how much taking is fair use, only a rule of thumb. For this reason, an author may expect that if her work is being considered for publication by a publisher and not self-published the editor will insist on her obtaining permission for lengthy quotations (“lengthy” in relation to the whole) that may cross the boundary of fair to unfair use.

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