fair use in our lives

dude, why cant everyone have magical boobies?Mat
April 20, 1999
RIM370 Wed 6pm
Professor Mulraine
Copyright Law


The Fair Use Doctrine was developed over the years as the courts tried to balance the rights of copyright owners with the people’s interest in allowing copying. This doctrine has at its crux, a crucial thought that not all copying should be illegal, particularly in socially important instances such as criticism, news, education, and research.

The Fair Use Doctrine is now set forth in the Copyright Act. Under the Act there are four factors to be considered in order to decide whether a particular copying is to be determined a “fair use.” These factors are:

1 .the purpose and character of the use, including whether such use is of 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.

It can be rather difficult to determine whether or not a particular use is a “fair use”. The four factors that are laid out in the doctrine can often lead to conflicting thoughts.

The first is a factor of “purpose and character” of the use. For example, if someone used a quotation for a review for a commercial magazine, this would mean that the first of the two factors (purpose) should state that there is no fair use. On the other hand, the fact that the purpose of the use was to review a work would lead to the fact favoring fair use.

The second factor is “nature of the copyrighted work.” For example, a new sound recording or book is a great example of a work, which should be protected by copyright law. As a result, the second factor weighs toward a finding of no fair use. If the recording or book had not yet been published, this would be even more important. It can be quite hard to prove fair use in the borrowing or quotation of an unpublished recording or book, respectively. However, it can not be impossible, since the unpublished status of a work is only one of the four elements when using fair use.

The third factor is “amount and substantiality taken.” As for the third factor, only short parts from a book could be included in a review. This generally means that in this instance that the third factor will rule in favor of a finding of fair use. However, the “quality” of the part taken is looked at under this factor as well as the “quantity.” It is quite possible that these rather short passages are the most important part of the book. If this were the case, the third factor of “amount” would most likely lead to no fair use.

The fourth factor is the “effect on potential market for protected work,” which I personally think is the most important of the four. For example, a negative review of an upcoming record would obviously impact the market or value of the copyrighted work. However, some courts have stated that for this factor you are to look only at the portion taken to investigate the effect on the market, and not at any negative comments contained in a review. Therefor the question would be whether the addition of the short passages in a magazine review would really affect the market for the record. When only rather short passages are use, the courts have generally held that there isn’t an effect on the market, and this factor should be of fair use.

Fair use can show itself everywhere. If a church was to release a CD of their favorite songs performed in their congregation for their use to learn the songs by, they could claim fair use. The church is typically a not for profit organization which will typically go under the purpose of the use. The use here is in no way for profit and what they gain from it will be by no means for profit. The courts would say that this use would be in fair use.

Another problem can come up when using performance licenses. Assuming your church is televising a religious revival on an international level for a three-week period. The show would be taped live in a church each evening and there would be musical performances on the program each night. Would you then need a license for these performances? The answer is: No. There are compulsory licenses, granted by the Copyright Act that may be use as the copyright owner sees fit. For example, if an author of a pamphlet does not want the pamphlet published or distributed, the author as the copyright owner can prevent publication and distribution. However, there are a couple exceptions to this rule, made in the Copyright Act, under compulsory licenses. These compulsory licenses allow third parties to copy, perform, or distribute certain types of works without the copyright owner’s permission, in exchange for which the third parties must pay a predetermined royalty amount. These compulsory licenses are extremely limited, and apply in only five circumstances:

1. the production of new sound recordings based upon an existing non-dramatic musical recording;
2. The performance of a non-dramatic musical recording in a jukebox;
3. The simultaneous retransmission of television signals by cable television operators;
4. The performance, display and recording of certain works by public broadcasting entities; and
5. A temporary right to retransmit television signals via satellite to household satellite dishes

This instance of the broadcasting of this religious revival would then fall under the third through fifth circumstances depending on where the broadcast was broadcasted from.

In schools, teachers will make copies of newspaper or magazine articles for their students in order for the student to better understand an idea. How far can the author or owner go to curtail this under fair use doctrine? The law does dictate that you can photocopy copyrighted material for educational purposes, however you have rigid guidelines. For example, when making multiple copies for classroom use you are limited for poems to be 250 words, complete prose to 2,500 word and prose exerpts to 1,000 words. When concerning music in the classroom the restrictions are less detailed but perhaps for rigid. When using sheet music for education, you can excerpt no more than 10% of the whole work, and can edit as long as the fundamental character of the work is not distorted or lyrics altered or added. For sound recordings a single copy of copyrighted music owned by that specific school or the individual teacher may be made, as long as it is only used for aural exercises or examinations.

The only entity not covered so far in fair use would be: parody and satire. The difference between parody (in which the copyrighted work is the target) and satire (in which the copyrighted work is there to make fun of another target) by going back to the language in the Acuff-Rose case. [Accuff-Rose v. Campbell, 972 F.2d 1429 (6th Cir. 1992)] There it was stated that “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its two feet and so requires justification for the very act of borrowing.” So in parody your new work must be poking fun at the original and nothing else.

When deciding if a copying is protected under fair use there are only a few factors: purpose & character, nature, substantiality, and effect. Even though there are only a few selected factors involving fair use the decision can be a tedious one and the opinions of the courts will all be different. I am personally all for the fair use doctrine. My only qualm with the doctrine is for education. I believe you should be able to use copyrighted material at your leisure in an educational learning institution. There is to be no loss for the copyright owner, only gain.

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