Copyright:What is Fair Use?

Copyright is protectionfor the authors of creative works,

but what does it protect?

It does NOT protect:

individual words or short phrases

familiar symbols and designs

mere variation of typographic ornamentation

lettering or coloring

mere listing of ingredients or contents

facts, such as baseball statistics

methods

IDEAS

Therefore, these sorts of items may be used without worrying about copyright infringement

Special Case: U.S. government publications

Copyright DOES protect:

Creative works* fixed in a tangible medium:

paper

a website

a CD

a game cube

* literary, musical, dramatic, choreographic, pictorial, graphic, sculptural works sound recordings motion pictures computer programs architectural works compilations

Therefore, to use these sorts of items legally, you need either the copyright

owner’s permission, or your use needs to fall under a copyright exemption, such as Fair Use.

A Fair Use exemption is granted if:

“a too literal enforcement of the copyright owner’s rights would operate to the detriment of the public interest in access to and dissemination of knowledge and culture, and unauthorized copying can be tolerated without significant economic injury to the copyright owner.”Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994)

The only way such a determination can be made for sure is by the courts.

Fair Use is decided case-by-case

It is a concept intended to be flexible and dynamic, but the following general examples are often cited as fairly definite:

quotation of excerpts for criticism or comment

quotation of short passage in a scholarly work

use in a parody

quotations in a news report

reproduction of a portion for use by a teacher to illustrate a lesson

In the Copyright Act of 1976, Congress for the first time codified the idea of Fair Use, and provided the following test to be used to

determine when it applies…

The “Four-Factor Test”

Purpose and character of the use (including whether such use is of a commercial nature or is for nonprofit educational purposes)

Nature of the copyrighted work

Amount and substantiality of the portion used in relation to the copyrighted work as a whole

Effect of the use upon the potential market for or value of the copyrighted work

17 U.S.C. §107 These factors are not to be “treated in isolation… All are to be explored, and the results weighed together, in light of the purposes of copyright.”

Campbell v. Acuff-Rose Music, Inc. 510 U.S. 578 (1994)

Purpose and Character of the Use

commercial vs. non-profit/ educational/ personal

criticism, commentary, etc.

“transformative” use

Nature of the Copyrighted Work

creative/imaginative vs. non-fiction

unpublished vs. published

Amount and Substantialityof the Portion Used

generally, small portion vs. large portion

consider significance of the portion

consider size of the portion in relation to work using the material

Effect on the potential market

substitute for buying a copy of the work?

substitute for paying royalties through an established system?

potential market for derivative works (translation, dramatization, etc.)

Some widely-accepted guidelines…

Single copies of the following are usually ok for research and/or teaching:

book chapter

periodical article

short story, essay, poem

chart, graph, diagram, cartoon, etc.

In addition, multiple copies for classroom use are ok IF:

excerpt is brief

use is “spontaneous” (not repeated)

consider cumulative effect (of many instances)

includes a copyright notice

There are other guidelines for media and for distance education…

Generally speaking—

use as small a portion as possible

limit access to currently enrolled students

terminate access at the end of the course

utilize existing license arrangements

For specialized advice on fair use and multimedia, contact the folks at our Academic Imaging & Media Center

(http://www.stmarytx.edu/aimc)

Copyright Resources

One-stop shop—

http://library.stmarytx.edu/acadlib/doc/copyr.htm

Major Fair Use cases

Sony Corp. of America v. Universal City Studios 464 U.S. 417 (1984)

home videotaping for time-shifting

Harper & Row Publishers, Inc. v. Nation Enterprises 471 U.S. 539 (1985)

Ford pardon excerpt

Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994)

“Pretty Woman” parody

Basic Books v. Kinko’s 758 F.Supp. 1522 (S.D.N.Y.1991)

coursepacks

American Geophysical Union v. Texaco, Inc. 60 F. 3d 913 (2d. Cir. 1994)

systematic copying for researchers

Kelly v. Arriba Soft 280 F.3d 934 (9th Cir. 2002)

thumbnail images in online directory

A & M Records, Inc. v. Napster, Inc. 239 F.3d 1004 (9th Cir.2001)

file-sharing of music