COPYCENSE

A. INTRODUCTION

This edition of CommuniK.™ features the fifth and final part of a series about copyright law exceptions that are available to libraries, schools, and archives. This is the second of a two-part article that discusses Section 107 of the 1976 Copyright Act, otherwise known as the “fair use” doctrine.

Fair use serves as the broadest copyright exception available in copyright law, one which is generally applicable to all circumstances. Fair use, however, is a paradox. First, fair use is very difficult to apply properly without experience. Second, while federal courts have decided a number of fair use cases in a way that seems to strengthen fair use, other factors (including a hyperactively litigious content industry) have served to diminish the doctrine’s practical viability.

This article goes beyond a strict interpretive analysis of Section 107. Instead, the article discusses fair use within the context of risk management, including how to analyze a potential fair use situation with a cunning eye that gives equal parts consideration to unlicensed use and the copyright owner’s exclusive rights.

Portions of this article originally appeared in the November/December 2005 edition of Online magazine.

B. FAIR USE: COPYRIGHT’S POKER GAME

Why does this still seem like gambling to you? It’s a skill game. – Matt Damon as Mike McDermott in Rounders (1998, Miramax Films)

For the past several weeks, I have presented a series of articles that has analyzed the copyright limitations that are available to information professionals, schools, and libraries. Each of those copyright limitations contains restrictions or conditions that keep them from being used by all parties.

For example, only “educational institutions” can use the exceptions in Section 110, and only libraries and archives can use the exceptions in Section 108. The “first sale” doctrine, in Section 109, does not limit the class of parties that can use that limitations, but “first sale” only serves as an exception to the copyright owner’s distribution right. It cannot, for example, serve as an exception to a copyright owner’s reproduction right.

On the other hand, fair use has few such qualifications, prerequisites, or conditions. Fair use is the equal opportunity limitation: it is open to all regardless of race, creed, or color; whether a non-profit or for profit entity; a corporation or school.

Fair use allows publications to quote from other sources without compensation. (For example, CopyCense paid no royalty to use the quote that opens this article; instead, we relied on the fair use doctrine.) It allows researchers to quote and cite to other scholarly works. It allows knowledge that is subject to copyright to be reproduced and disseminated rather easily – without condition of prior permission or compensation – under a broad, rather unspecific array of circumstances.

And here is where fair use becomes like playing poker. To seasoned veterans of fair use application, using the fair use statute is not really a gamble. Instead, these veterans see fair use as a skill game waiting to be exploited and manipulated fairly, a contest in which knowledge of the law, the ability to gather all relevant factual information, and quick decision making skills all combine for consistent wins.

Unfortunately, most people misjudge the skill that is necessary to conduct a thorough fair use analysis. Either they underestimate the complexity of the doctrine to the point where they open themselves to legal liability, or they overestimate its complexity, and therefore never use it. Both errors can be costly. The goal of this article is to begin demystifying fair use so that information professionals count on more than beginner’s luck in avoiding a potentially costly infringement action while keeping the doctrine as broad and as viable as Congress intended it to be.

C. FAIR USE MYTHS

Part of the reason that many folks misinterpret the fair doctrine is because they believe several myths about what constitutes fair use. Let’s briefly analyze a trio of the most common myths.

1. “If I give credit to the author, then it is fair use.”

I call this the acknowledgment myth, and I hear it repeated often in the educational arena. I also hear this myth repeated as a justification when a person copies a protected work from the Web and then pastes that entire work in an online forum such as a intranet or listserv, complete with the author’s name and the owner’s copyright notice.

In fact, neither credit nor attribution equals fair use. Giving credit may count for plagiarism purposes (which may explain this myth’s persistence in educational circles), but it means little when it comes to fair use. In fact, plagiarism generally is unrelated to copyright (although plagiarism often involves copying another’s academic work).

2. “If I use only a little bit, then it is fair use.”

I call this the “twenty second myth,” so named after a common misperception held by many musicians who believe that they may use a sample of a copyrighted work if they use 20 seconds or less of that work. Here’s the problem with such a rationale: what if the 20 seconds is the chorus of the song? What if that 20 seconds is Mick Jagger singing “I can’t get no …” from the Rolling Stones’ 1965 hit “Can’t Get No Satisfaction”? Anyone who hears Jagger sing that phrase automatically knows the song because that phrase is the heart of the song.

(In light of the holding in a 2004 Sixth Circuit case, the “20 second” rule no longer has any legal basis, at least in some Midwestern states. In Bridgeport Music v. Dimension Films, 383 F. 3d 390 (6th Cir. 2004), the court affirmed a 2002 opinion issued by the United States District Court for the Middle District of Tennessee at Nashville that awarded costs and attorney fees to plaintiff music publishing companies for their unlicensed use and inclusion of George Clinton and the Funkadelics’ “Get Off Your Ass and Jam” in the song “100 Miles and Runnin’.” The song and sample were included in a film entitled I Got the Hook Up. In affirming the exclusive rights of plaintiff music publishing companies, Judge Ralph B. Guy seemingly rejected de minimis and fair use sampling when he wrote “Get a license or do not sample. We do not see this as stifling creativity in any significant way. It must be remembered that if an artist wants to incorporate a ‘riff’ from another work in his or her recording, he is free to duplicate the sound of that ‘riff’ in the studio.”)

As we will see below, the fair use doctrine accounts for the substantiality of the portion of a copyright as only one of four factors, and substantiality is not necessary related to amount or relative percentage. Therefore, using small bits of a work does not automatically equal fair use.

3. “If I use the work for educational, scientific, research, or non-profit purposes, then it is fair use.”

It’s not my intention to pick on the educational community, but again, educators are most likely to repeat this myth as well. It is true that the nature of the purpose is considered under a fair use analysis. It also is true that the educational use of a protected work generally will tip the scales in favor of a fair use finding for that particular factor. But there are at least four factors involved in the fair use analysis, and a negative finding on the other three could result in a finding against fair use.

4. “Unlicensed commercial use, or unlicensed use by commercial entity, never can be a fair use.”

This myth might be the most damaging myth that exists. Commercial entities and commercial uses can be protected by fair use. Unfortunately, the atmosphere for fair use is much more hostile for commercial entities than it is for non-profit or educational entities. (One exception to this observation is the newspaper industry, which seems to have been able to maintain a viable fair use practice.) As more content has become digitally created (and, by extension, easily reproducible), copyright owners have been increasingly loathe to concede that fair use exists. This attitude and its holders’ constant litigation threats have left fair use virtually non-existent in the commercial sector.

This hostile atmosphere has affected creativity in a variety of ways, but has lead to some inventive projects like the Center for Social Media’s Documentary Filmmakers’ Statement of Best Practices in Fair Use. (.pdf, 158 KB)

5. “Fair use is a rule.”

Generally, the federal copyright law is a series of rules. Often, these rules have exceptions. Sometimes, the law provides exceptions to the exceptions. For the most part, people like systems of rules and exceptions because they usually are clear about what is allowed and what is barred.

In contrast, fair use really is not so much a rule as it is a system of guidelines. If a person knows the guidelines well enough to work within the system, he can use a protected work without waiting to get the copyright owner’s permission. If a person either does not know the guidelines, or decides to work outside the system, he either must get the copyright owner’s permission to use a protected work, or risk being sued or held liable for copyright infringement. People tend not to like guidelines and systems because they are not as clear as rules and exceptions. Abiding by guidelines and systems usually requires a person to do more work than if the same person had to decide whether or not to break a rule.

For example, Section 110 has some very clear rules, among them the condition that only “educational institutions” may use that section as a copyright limitation. That rule — only “educational institutions” can use Section 110 to limit copyright — is clear. In contrast, the only clear rule in Section 107 is “[t]he fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Not only does this “rule” require a reader to determine whether his intended purpose is “criticism, comment, news reporting, teaching …, scholarship, or research,” it still does not clearly outline the persons or entities that may qualify for fair use. Nor does the rule define “fair use.”

6. “Fair use is a right.”

Many people consider fair use to be a right Congress embedded in the Copyright Act. It is not. (In fact, there are few rights in the Copyright Act, and most of the important ones are found in Section 106.) Instead, fair use limits a copyright owner’s exclusive rights; for litigation purposes, fair use is an affirmative defense to copyright infringement.

The distinction between right and affirmative defense is quite technical, but critically important to successfully playing the fair use game. An affirmative defense is a denial to a plaintiff’s allegation whereby the defendant asserts that there is additional evidence the court should consider, and that additional evidence effectively mitigates or eliminates a defendant’s liability or guilt. In an affirmative defense, the defendant – not the plaintiff – holds the burden of proving the evidence that is the basis of the affirmative defense.

Applying this to copyright litigation, any person or entity that formally wishes to limit a copyright owner’s exclusive rights under Section 106 can do so only as an answer to the owner’s duly filed complaint. If this has occurred, it means a copyright lawsuit in federal court has begun. I think I can safely presume that most folks reading this article want to stay out of court altogether, since litigation can be expensive. In his book Free Culture, Stanford law professor Lawrence Lessig tells a tale where it is estimated that fighting an RIAA file-sharing lawsuit would cost at least $250,000. Even if fair use litigation does not cost that much, any good business person must consider the economic and business interruption costs inherent in any sort of litigation.

But even though fair use is a litigation defense, you can use the doctrine to mitigate the likelihood that you will get sued and your odds of winning. The rest of this article will walk readers through the appropriate analyses.

D. THE STATUTE

The fair use doctrine is codified in the Copyright Act at Section 107, and it says in pertinent part

The fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and 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 work as a whole; and

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

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

For me, it is easier to analyze Section 107 by dividing it into purposes and factors, as shown in the following illustration.

1. Purposes

Generally, the six purposes are split amongst those for journalism (comment, criticism, and news reporting) and those for education (teaching, scholarship and research). I would venture to guess that much of the misconception around fair use that exists in these two industries arises from writers and educators finding their purposes listed in the statute and settling that such purposes automatically qualify for fair use.

But the purposes in Section 107 are illustrative, not comprehensive. Further, the statute’s language (“for purposes such as …”) suggests that the listed purposes do not automatically qualify as fair use. So for example, a purpose that may qualify as news reporting – such as my use of the quote from Rounders – does not automatically mean that such use constitutes fair use. The purposes are merely examples; my use of the quote still must qualify as a fair use under the four factor test.

There is no real mystery to what the purposes mean. “Comment” generally means, quoting or summarizing an article. This is a balancing act I encounter each day, since CopyCense leverages the fair use doctrine to create abstracts from material that is copyrighted by other news organizations. Frankly, much of CopyCense‘s content exists by virtue of the fair use doctrine.

(One should take care when developing article abstracts, however, since abstracts are copyrightable. But if the abstract is not an original work, but instead derived exclusively from the article it is summarizing, then the abstract is a derivative work. In such a case, only the copyright owner — perhaps the writer, perhaps the publisher — can create that sort of abstract.)

“Criticism” can mean things like analysis of the arts, but again, caution is warranted. Quoting some of the lyrics from the Stones’ “Can’t Get No Satisfaction” in a critical piece may pass muster under Section 107, but it would be inadvisable for any writer to include all the song’s lyrics in any essay, even one that can qualify as “criticism.” (Interestingly, many publications are choosing to get permission for any use of music lyrics — no matter how slight the quotation. This practice has become more common over the last few years, consistent with Big Music’s increased litigation campaign over all unlicensed uses of any musical content.)

“News reporting” was probably self-explanatory until recently. The term traditionally has meant “journalism” for fair use analysis, but with the rise of online media – particularly blogs – the question becomes “When does a blogger become a journalist or news reporter?” Whether blogs qualify as news organizations for fair use analysis purpose remains unsettled as of this writing. Still, both publications still must determine whether their use of copyrighted material is a fair use by analyzing the four factors outlined in Section 107.

On the educational end of the spectrum, “teaching” is pretty straightforward, although educators may be able to rely on two other limitations (Section 110(1) and Section 110(2)), both of which are more rule-oriented, and therefore a bit easier to use in an exceptions analysis.

But educators often find trouble in safely determining what constitutes a purpose of “scholarship” or “research,” particularly when they post items to a class Web site. As with all the purposes, fair use is determined not by the appearance of an eligible purpose within the statute, but instead whether the purpose passes muster under the four factor test. If there are any general guidelines that one can use, “less is safer” probably is the best. (Remember the “20 second rule” myth.)

2. Factors

Section 107 also lists four factors that judges should consider when they are determining whether a defendant’s use is a fair use. The language of Section 107 (“the factors to be considered shall include …”) indicates that the listed factors are not a complete catalog. For the most part, however, the federal courts will analyze only the four factors outlined in the statute.

Often, I am asked which factor is the most important. On the surface, no single should be more important than any other factor; all of them should be considered equally. But recent federal court decisions have suggested that one factor may carry more influence than the others. I will address this trend below.

(a) Purpose and Character of the Use

The first factor deals with “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” Practically speaking, this factor gives presumptive (but not conclusive) advantage toward fair use when the copyrighted work is used for educational purposes instead of commercial purposes. This does not mean, however, that an educational use is de facto a fair use. The educational nature of the use still must be balanced against the remaining three factors.

The purpose factor also generally leans toward a fair use if some new value or utility is added to a work – so called “transformative” uses – as opposed to a user merely making an exact reproduction of the work. A parody would be a good example in which use of a protected work is sufficiently different to rise to the level of being “transformative.”

(b) Nature of the Work

This factor assesses the nature of the work that is being copied. Generally, uses of copyrighted works that contain factual information are more likely to lean toward fair use than works that have a higher level of creativity and originality. This is because under Section 102 and the decisions that interpret it, factually-based work that lacks originality or creativity generally cannot be copyrighted.

This does not mean, however, that cutting and pasting whole articles from the online edition of a newspaper is acceptable. It is important to recognize that each of the factors works synergistically: where one factor leans one way, another factor may lean in the opposite direction.

(c) Amount or Substantiality

While Section 107 does not discuss any bright line rules about the amount of a work that is used, common sense should dictate that using an entire work without permission rarely constitutes fair use. The question, then, becomes how much less does “less than all” need to be in order to qualify as an acceptable amount under this factor? As with everything about fair use, it depends.

Recalling our Rolling Stones example, the chorus would constitute a relatively small portion of the work, but the nature and quality of that portion is substantive because it is the heart of the work. When mulling the amount factor, the focus should be more on the substantiality of the portion rather than the percentage taken when compared to the whole work.

(d) Potential Market Value

Although four factors are supposed to be given equal weight, a use’s affect on market value has emerged as the most important of the four factors. Here, the emphasis is on whether (and to what extent) the use deprives the copyright owner of potential income, either through potential diminishment of income in current market or possible future markets.

One should continue to go through all the factors using a case-by-case, factor-by-factor approach, but an analysis of the most recent court decisions have found that this factor presumptively is found in favor of the copyright owner. The prevailing rationale is that a copyright owner always may commercialize its property, even though it may not have done so at the time of an alleged infringement. Given Big Content’s consistent failure to leverage new technology in ways in which it can commercialize its properties (it seems to prefer to sue others that have taken such initiative), I think this argument is shaky at best.

Still, federal judges tend to judge this factor in favor of copyright holders. I have not seen a decision where a federal judge essentially says that a copyright holder has failed to show potential market value. Since this factor presumptively is in favor of the copyright owner, a person or entity doing a fair use analysis should be confident it can rule clearly in favor of fair use on at least two of the remaining three factors in order to presume that a fair use exception is available.

E. FAIR USE STRATEGY

Those who leave fair use assessments to chance are as irresponsible as the tourist who steps off the tour bus, walks into a casino, and sits down to play Texas Hold ‘Em with nothing more than a stack of chips and a prayer. Is there some luck involved in fair use assessments? Absolutely. Some of that luck involves factors that are beyond your control, including whether the copyright owner is litigious, or whether your institution or company will make fair use assessments prudently, but aggressively.

Still — like poker — fair use analysis is much more skill than fortune, and the skill with which you make these assessments can keep you from being sued. Further, solid fair use analysis can limit damages if you are sued and ultimately lose at trial. Section 504(c)(2) includes a sort of fair use mitigation clause which allows a judge to reduce statutory damages to as low as $200 in the event “the infringer … was not aware and had no reason to believe that his or her acts constituted” copyright infringement.

Fortunately, there are some guides that can help simplify the analysis process; one of the best is Kenneth Crews’ fair use checklist. In the checklist, Crews has taken the each of the four factors and listed common factual circumstances that either fall in favor and against fair use. While the checklist is oriented to the educational sector, it is a good starting point for any organization that wants to see how to go about conducting a fair use analysis, and it certainly can be modified to fit specific industries.

F. FUTURE FAIR USE ISSUES

Fair use controversies are going to continue to manifest themselves in the online arena over the coming years. One fair use battleground is going to occur in the licensing of electronic resources. As more materials are offered exclusively in a digital format – think of the evolution from vinyl records to compact discs, and now to MP3 and other compressed digital music files – the way in which these digital products are offered to the public will be through a lease using a license agreement instead of through a sale. If you buy music through the iTunes music store, you are leasing that music through a license; that transaction is not a sale.

What this means is that most of the time, the fair use provisions found in Section 107 do not apply unless those rights are specifically written into the license. And guess what? Licenses rarely include fair use terms, or fair use languages. Many electronic content providers draft relatively fair license agreements; in my opinion, Apple’s iTunes license agreement (.pdf, 1.08 MB) is relatively fair. Fairness, however, is not standard in licensing agreements. This means that you’ll have to begin looking at these agreements much more closely to ensure that you are not surrendering through contract what you have available under federal law.

Another fair use battleground is going to occur in the area of search. Last year, Perfect 10, Inc., owner of the adult magazine Perfect10, sued Google, Amazon.com, and Amazon.com’s search subsidiary A9.com, alleging that the companies’ search engines (Google and A9, respectively) committed copyright infringement by displaying thousands of images from its Web site without permission. As part of their image search capabilities, both Google and A9 save exact, smaller reproductions of images (called “thumbnails”) that are made available on the Web. Both search engines link to the actual full size images as they are represented on the referral Web page.

There are instances where the Google search engine, in particular, will make available an image that is no longer available from a public Web page because that image has been archived or is otherwise held in a database that is not publicly accessible.

The District Court in the Northern District of California consolidated the cases, then Perfect 10 moved for a preliminary injunction against Google and Amazon.com, seeking to prevent their image search engines from displaying “thumbnail” copies of Perfect 10’s copyrighted images. The injunction also sought to keep the search engines from linking to third party websites which host and serve infringing full-size images. The Court conducted a hearing on November 7, 2005.

Last week, Judge A, Howard Matz held that Google’s creation and public display of “thumbnails” likely infringes Perfect 10’s copyrights, and on this basis, granted (.pdf, 1.98 MB) Perfect 10’s request for an injunction. Matz ordered Perfect 10 and Google “to jointly propose the language of such an injunction, and to lodge their proposal by not later than March 8, 2006.” (Perfect 10’s case against Amazon.com and A9.com will be decided separately.)

Reaction to the ruling is split. Fred von Lohmann, Senior Staff Attorney for the Electronic Frontier Foundation, opined that the decision “will be remembered as a little bad for Google, but a lot good for the Web,” particularly since Judge Matz rejected the notion that inline linking of images directly infringes a copyright owner’s public display right.

Other commentators view the decision as significantly negative for Google that it may impact the search company’s defense against publishers’ infringement claims in the Google Book Search case. In a New York Times article published Sunday, several lawyers speculated that Matz’s decision overturned Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116, a 1999 case that held that search engines’ use of thumbnail images constitutes a fair use. Google is relying on the Kelly decision as part of its defense in the Google Book Search case.

Google likely will appeal the Perfect10 decision, although it is impossible to determine as of this writing whether any appeal would be decided before the Google Book Search case is tried in court. This area will continue to be one to watch throughout the coming year.



RESOURCES

CopyCense. Google Loses Thumbnail Case. Feb. 23, 2006.

K. Matthew Dames. The Context of Fair Use: Action or Apathy? CopyCense. Feb. 22, 2006.

K. Matthew Dames. Library Copying in the Digital Age. CopyCense. Jan. 31, 2006.

K. Matthew Dames. First Sale in the Digital Age. CopyCense. Jan. 23, 2006.

K. Matthew Dames. Using Copyrighted Works in the Classroom. CopyCense. Jan. 16, 2006.

K. Matthew Dames. Copyright Limitations Risk Analysis. CopyCense. Jan. 9, 2006.

Center for Social Media. Documentary Filmmakers’ Statement of Best Practices in Fair Use. (.pdf, 158 KB) Nov. 18, 2005.

Brennan Center for Justice at NYU Law School. Will Fair Use Survive? Free Expression in the Age of Copyright Control. (.pdf, 2.3 MB) Nov. 16, 2005.

University of Texas’ Copyright Crash Course. Fair Use of Copyrighted Materials. March 30, 2005.

U.S. Court of Appeals for the Sixth Circuit. Bridgeport Music, et al. v. Dimension Films, et al. (Nos. 02-6521; 03-5738). Sept. 7, 2004.

University of California. UC Copyright: Fair Use. Jan. 9, 2003.

American Association of Law Libraries. AALL Guidelines on the Fair Use of Copyrighted Works by Law Libraries. January 2001.

U.S. Copyright Office. Fair Use. No date.

CopyCense. Fair Use & Other Limitations (Category Archive). No date.

American Library Association. Fair Use and Electronic Reserves. No date.

Stanford University Libraries. Copyright and Fair Use Overview. No date.

University of Maryland University College. Copyright and Fair Use in the Classroom, on the Internet, and the World Wide Web. No date.

Mary Minow. How I Learned to Love Fair Use. Stanford University Libraries. No date.

Copyright Management Center. Fair Use Checklist. No date.

Negativland. Fair Use. No date.

Lloyd J. Jassin. Fair Use in a Nutshell: A Roadmap to Copyright’s Most Important Exception. No date.

METADATA

Author: K. Matthew Dames

Title: CommuniK.: Demystifying Fair Use

URL: http://www.copycense.com/2006/03/demystifying_fa.html

Publisher: CopyCense, a division of Seso Group LLC

Copyright: 2006, Seso Group LLC

Contact: copycense at g mail dot com

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC. CopyCense™ and CommuniK. ™ are trademarks of Seso Digital LLC.