Copyright Talk

Anyone that works with copyright is aware of a concept called “fair use” that allows the reproduction of some portion of a copyrighted work without infringing on the right of the copyright owner to control the work.

It is also my opinion that nearly everyone who is aware of the concept of “fair use” also misunderstands it. So we’re going to discuss fair use all this week.

First and foremost, “fair use” does not give a general entitlement to use copyrighted works. In a very few situations where use of a particular, specific work must be made, as in when a review of the work is being given, there is an entitlement to reproduce reasonable portions of the work in order to illustrate critical points. But in most – as in most – cases, the phrase “fair use” comes up only because a person could not or did not get actual permission to use the selected portion of the copyrighted work.

Anytime anyone finds themselves wanting to use any portion of a copyrighted work, their first thought should be, “let me get in touch with the author/artist and get permission.” Especially in this computer age, finding and communicating with copyright holders is generally pretty easy. Seeking permission involves nothing more than an email or letter to the author, artist, or publisher, describing what you want to use and how you want to use it. Thank them for their consideration, and then sit back and wait for the response.

The response will be one of these things:
1. No response
2. A request for more information
3. A no
4. A no, unless you pay some amount of compensation ( you should never be offended if someone wants to be paid for their work, just decide if you want to buy or not)
5. A yes
6. A yes, with specific conditions (ex., be sure to include copyright notice, or only use up to a certain point)

Response 1, 3, or 4 will require you to either find a different work to use, or to make a very deliberate determination of whether you think your proposed use is legally defensible under the “fair use” doctrine, enough so that you are willing to use the work anyway and be prepared to defend yourself from an infringement suit.

Response 5 or 6 gets you what you want, without having to worry about whether your use is “fair” or not.

And what is a “fair use?” The Copyright statute sets out four factors to consider:
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. 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.
There is no black and white rule for what constitutes “fair use.” It is a determination dependent on the individual work and the use being made of it.

Let me repeat: There is no black and white rule for what constitutes “fair use.” It is a complicated determination that depends on what kind of work it is, who is using it, how they are using it, and in many cases the question whether permission could have been sought or not.

So rule number one in “fair use” doctrine is, unless you are doing a review, try and get permission to use a work rather than talking yourself into why it’s okay to use it without permission. In fact, writing to authors and artists and musicians is actually very cool networking opportunity. Most of these folks are much more accessible than you’d think, and love to hear that people have actually used their material.

Tomorrow: different types of media and how that affects fair use determinations