Copyright
Guidelines
Fair
Use Principles
What is "Fair Use"?
The doctrine
of fair use allows for the use of copyrighted works without the owner's
permission. It protects limited uses of copyrighted works from being an
infringement. The doctrine is, however, determined on a case-by-case basis,
sometimes with contradictory results. Because of this uncertainty, fair
use must be approached with caution. As a rule of thumb, if you are uncertain
after reviewing the factors below whether a use is a fair use, assume
it is not.
The Copyright
Act provides that the "fair use of a copyrighted work for purposes
such as criticism, comment, news reporting, teaching (including multiple
copies for classroom use1),
scholarship, or research, is not an infringement of copyright." Again,
not all educational uses are fair use. Four factors are considered in
determining whether the use of a work is a fair use:
- the purpose
and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
- the nature
of the copyrighted work;
- the amount
and substantiality of the portion used in relation to the copyrighted
work as a whole; and
- the effect
of the use upon the potential market for or value of the copyrighted
work.
17 U.S.C.
§ 107. Courts decide fair use by weighing each factor individually
and then determining which way the combination of factors tips. Each factor
is discussed in detail below.
Purpose
and Character of Use
Certain types
of uses typically favor fair use, including teaching, research, scholarship,
criticism, news reporting and parody. Also favoring fair use are uses
that transform the copyrighted work for a new purpose, rather than pure
copying. The Supreme Court has defined transformative use as a use that
"adds something new, with a further purpose, or different character,
altering the first with new expression, meaning or message." Other
types of uses are typically viewed as not fair use, including situations
where the user is engaged in commercial activity or is otherwise profiting
from the use. Failure to give credit to the original author will often
also weigh against fair use. Use of a copyrighted work for entertainment
purposes is less likely to be deemed a fair use than educational purposes.
Nature
of Copyrighted Work
Creative
and fiction-based copyrighted works are given greater protection than
works of a factual or non-fiction nature. Similarly, non-published works
are given greater protection than published works.
Amount
and Substantiality of Work Used
This factor
measures both the quantitative and qualitative nature of the portion of
the work used. The smaller the portion of a work used, the more likely
the use is a fair use. Conversely, use of a substantial portion of a work
or the heart of a work is less likely to be considered fair use. For example,
use of three lines from a multi-volume work is likely fair use, but use
of three lines from a six-line poem is less likely to be fair use.
Effect
of Use on Market for Work
The Supreme
Court has said to "negate fair use one need only show that if the
challenged use should become widespread, it would adversely affect the
potential market for the copyrighted works." Use of a work that replaces
the need for others to purchase or license the work, especially if the
work is easily purchased or licensed, will weigh against fair use. Making
just a few copies, available to only a limited number of people, is likely
to weigh in favor of fair use.
Do
any "Safe Harbors" Exist for Educational Uses?
Congress
incorporated into the copyright law numerous guidelines for educational
institutions' use of copyrighted works ("Congressional Guidelines")
to provide more certainty in determining fair use. These guidelines are
not law, but courts give them deference. MCCCD endorses these guidelines
as representing the minimum, not maximum, boundaries of fair use. The
guidelines are discussed in detail under each media section, such as printed
materials and music. Uses exceeding the scope of the guidelines may still
qualify as fair use when analyzed under the four fair use factors.
In addition,
numerous organizations have worked together towards creating additional
guidelines for the use of copyrighted materials by nonprofit educational
institutions. The guidelines on the use of copyrighted materials in the
creation of multimedia works emerged from the Conference on Fair Use (CONFU)
and are attached as further guidance. Although these guidelines were not
formally adopted, a large number of organizations approved them. Again,
these guidelines represent the minimum, not the maximum, scope of fair
use.
Examples
of Fair Use Cases in the Educational/
Scholarly
Context
Cases dealing
with fair use in an educational or scholarly context are rare. Nonetheless,
for discussion purposes only, a sampling of cases dealing with fair use
in an educational or scholarly context is set forth below. Remember, however,
fair use is determined on a case-by-case basis and the outcome of the
analysis can be changed with a single fact. Thus, you should not view
the below cases as examples of permitted (or prohibited) activities.
Marcus
v. Rowley, 695 F.2d 1171 (9th Cir. 1983). Plaintiff owned the
copyright to a booklet on cake decorating. Defendant, a public school
teacher, copied portions of the booklet for use in her food service career
classes. The court found the factors, as a whole, "decisively"
weighed against fair use. Purpose and Character of Use: Although
defendant used the work for a nonprofit, educational purpose, she did
not transform the work, but instead used it for the exact same purpose
for which it was created. Moreover, the court found her actions to be
in bad faith as she did not credit plaintiff for the use of her material.
Nature of Work: The work contained both factual and creative matter,
making this factor indecisive. Amount of Work Used: This factor
pointed away from fair use as defendant copied nearly half of the plaintiff's
work and virtually all of the substance of that work. Effect on Market:
The court found no evidence of effect on the market, but held the absence
of pecuniary damage does not require a finding of fair use. Guidelines:
The Ninth Circuit also analyzed the defendant's conduct under the Congressional
Guidelines for printed materials and held her conduct to not constitute
fair use under the guidelines as she failed the requirements of brevity,
spontaneity and inclusion of copyright notice.
Basic
Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y.
1991). Plaintiff publishers brought suit against Kinko's, a for-profit
copy shop, claiming its copying of excerpts from books for course packs
violated their copyrights. The court rejected Kinko's fair use argument
under both the four-factor analysis and the Congressional Guidelines.
The decision explicitly did not consider copying performed by students,
libraries, or on-campus copy shops. Purpose and Character of Use:
This factor weighed against fair use. Although the use of the course packs
was "no doubt" educational in the hands of students, the use
in the hands of Kinko's employees was commercial. Kinko's directly profited
from copying the works without paying permission fees. The court also
rejected Kinko's argument that it was acting merely as an agent of the
educational institutions. Nature of Work: The works were factual
in nature, weighing in favor of fair use. Amount of Work Used:
This factor weighed against fair use. The portions copied were critical
parts of the books, since that was the likely reason the professors chose
them for their classes. Moreover, the qualitative measure was significant
as the passages copied ranged from 5% to 25% of the works and most often
captured an entire chapter of a book. Effect on Market: This factor
weighed against fair use. The court found the copying displaced the need
for students to buy the texts from which the material was derived and
thus competed directly with the copyright owner. It also made payment
of permission fees on the materials unnecessary, further harming the market.
Guidelines: The court also pointed to the Congressional Guidelines'
prohibition against creating anthologies as weighing against fair use.
Princeton
Univ. Press v. Michigan Document Serv., Inc., 99 F.3d 1381 (6th
Cir. 1996). Under facts similar to the Kinko's case, the Sixth Circuit
also found a commercial copy shop's copying for course packs was not fair
use. Again, the challenged copying was by a commercial entity that directly
profited from the use of the copyrighted work. The court, however, cautioned
that "the issue is by no means free from doubt" that similar
copying by students or professors would be fair use.
Am.
Geophysical Union et al. v. Texaco Inc., 60 F.3d 913 (2d Cir.
1994). A group of publishers brought suit against Texaco based on the
institutional, systematic copying of articles from scientific journals
for researchers' personal libraries. The court expressly excluded copying
for individual purposes from its decision. Purpose and Character of
Use: This factor weighed against fair use. The copying was deemed
an intermediate use because, although for research purposes, the ultimate
goal of the research is to benefit a for-profit entity. The researchers
most often copied the articles for archival use, rather than immediate
use in research, making the use non-transformative. Nature of Work:
This factor favored Texaco because the material was essentially factual
in nature. Amount of Work Used: The court characterized each "work"
as the articles in the journals, rather than the journals themselves.
Thus the entire works were copied, weighing heavily against fair use.
Effect on Market: The court focused on the market for licensing
fees for copying individual articles in finding that Texaco's activities
have an adverse effect upon the market.
Higgins
v. Detroit Educ. Television Found., 4 F. Supp. 2d 701 (E.D. Mich.
1998). The plaintiff, Higgins, owned the copyright to a musical composition
PBS used as background music during the introduction and conclusion of
an episode of a half-hour teen-targeted TV series. The purpose of the
episode was to teach teenagers conflict resolution skills and the dangers
of illegal drugs. The show was aired on the Detroit Public Broadcasting
station and videotapes of the show were available for purchase by educational
institutions. The court found this use to be a fair use. Purpose and
Character of Use: This factor favored fair use. PBS made no profit
from the show and the purpose of the show was educational. Although videotapes
of the show were available for purchase, sales were expressly limited
to "educational use only." Moreover, defendants transformed
the song into a new work, for a new purpose. It was barely audible background
music in an audio-visual program that sought to educate teenagers. Nature
of Work: The court found this factor to weigh slightly in plaintiff's
favor. As a musical composition, it is a creative work. Amount of Work
Used: This factor favored defendants as only 35 seconds of the 3 minute
and 35 second song were used and those portions were not the heart of
the song and were barely audible. Effect on Market: This factor
favored defendants. The court found the use of the small, barely audible
portions of the copyrighted composition was neither a substitute for the
original work nor in competition with the original work.
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1 - See the Fair Use Guidelines for Classroom reprinted below. Not all
multiple copies for classroom use are fair use.
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