May it Please the Mozzers,

I promised you some fair use and oh boy! You’re getting some fair use. This post turned out much longer than expected. I beg your patience and your readership.

Imagine for a moment that you have made some interesting, powerful, and witty content, filled with pop culture. Perhaps you've borrowed some material from some other readily available online sources. Now let's imagine that you get an accusatory email from the owner of one of the websites that you quoted on your site. What now? You've heard about fair use and you know that you can sometimes use other people's material, but you don't know when. Do you take down the post and avoid any kind of confrontation? Do you remain silent and call their bluff? Or do you reply with a professional, articulate email about why you can lawfully use the quoted material?

The object of this post is to teach mozzers about the fair use defense. Everyone making content for the web should learn how to evaluate whether the content on their sites is infringing or fair use.

If you suffer through this post, you will have a working understanding of the issues surrounding fair use. This will help prevent you from innocently infringing on someone's protected content and also help you address any accusations of infringement.

Here's the quick and dirty outline of what we're going to cover in this post:

    ⇒ What is "fair use"?
    ⇒ Does the fair use defense only work in the United States?
    ⇒ How does fair use related to trademark, copyright, and patent law?
    ⇒ What's the big deal about fair use? Why do we care?
    ⇒ There are four factors to consider when determining whether you are illegally infringing someone’s copyright or merely employing fair use of the material:
                     → The purpose and character of the use, including whether such use is of a commercial nature or is nor nonprofit educational purposes;
                     → The nature of the copyrighted work.
                      → The amount and substantially 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.  
 
    ⇒ But I thought I had a First Amendment Right to free speech...
    ⇒ Specific Applications                     
                    → Can I quote someone on my website?
                    → Can I post someone else’s graphic on my website if I give credit to them?
                    → Is my software vulnerable to fair use?
                    → Is parody considered “fair use”?

Before we begin, we must go through the obligatory CYA paragraph. Although I’m sure you’re all lovely people (especially the ones I met at Pubcon!), I do not and cannot represent you as your attorney. I am not giving you legal advice. I am giving you information about the law. If you’re dealing with a copyright issue, you should consider consulting an attorney.

Now that’s out of the way, let’s get started.

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⇒  What is “fair use”?  Section 106 giveth and Section 107 taketh away.  

Section 106 of The Copyright Act (Title 17 of the United States Code) gives creators exclusive use of their original works. As discussed in my previous post, you have the immediate right to control distribution of your creative works. I use the words "creators," "authors," and "copyright holders" interchangeably in this post. I intend to refer to anyone who has the right to the original content. 

Section 107 of the Copyright Act abrogates Section 106 by permitting others to use your original works so long as the use is “fair.”

To put it more simply, copyright holders don't really have 100% exclusive rights to their material. Instead, the public has limited rights to use the content pursuant to a doctrine called "fair use." Because a creator's rights are not absolute, you can respond to a claim of copyright infringement by claiming that your use was covered by the "fair use" doctrine.

⇒ Does the fair use defense only work in the United States?

Before we dive into fair use, I want to clarify for our global mozzers what jurisdiction I am talking about. This post is about the U.S. concept of “fair use.” Thus, it is only relevant if you find yourself subject to U.S. law someday. See my previous post on copyright cases with international components to give you an idea of whether that is a possibility.  

International conceptions of fair use are substantially more limited than the U.S doctrine. In fact, our European friends have an altogether different approach to fair-use problems. Where the U.S. is broad and general in its definition of fair use, other countries employ specific, narrowly-defined exceptions to a copyright holder's right to control reproduction. Comparing these two regimes is definitely worth doing and I promise to make this the subject of a future post.

⇒ How does fair use relate to copyright, trademark, and patent law?

Fair use is a defense to copyright infringement, not trademark or patent law. There are similar defenses to claims of trademark or patent infringement. I will discuss those in upcoming posts. For now, I want to continue the recent conversations we’ve had about copyright.

⇒ What's the big deal about fair use? Why do we care?

If you are making or hosting content for the web, you need to understand how much content you can borrow from other sources, and when you need to get permission first. Conversely, if you think someone is stealing your content, you need to make sure that the conduct is illegal infringement before wrongfully sending a DMCA take-down notice and making an ass of yourself.

Also, if you’re being accused of infringement, you need to be able to articulate why you think your use is fair. I hope this post will help you determine whether to stick to your guns or let it go.

⇒ There are four factors to consider when determining whether you are illegally infringing someone’s copyright or merely employing fair use of the material.

The U.S. legislature identified four factors for the courts to consider when determining whether a defendant is making fair use of copyrighted material. The factors are general (ahem, practically meaningless) and were designed so that courts could continue to develop the law as new technologies emerged. You probably learned that the constitution was a “living document” in primary school. Your teacher called it that because the U.S. constitution is capable of changing and adapting to new scenarios that challenge liberty and government. Well, not to get too sentimental, but Section 107 of Title 17 of the United States Code is also a “living document.” It’s so broad that it has continued to guide the courts through the advent of the copy machine, the VCR, the CD, the MP3, the Internet, and peer-to-peer technologies.

The problem is, of course, that the broad principles set forth in section 107 lead to many different judicial opinions. Thus, the case law interpreting the four-factors test is ambiguous, evolving, and sometimes contradictory. (All the lawyers are probably slobbering all over their keyboards about now. We love problems without answers. It’s sick, really.) Without further ado….

”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.

I will now briefly review each factor individually before going through some specific examples.

i. The "Nature and Purpose of the Use" Factor.
The first factor emphasizes the nature and purpose of the use. In short, the “fair use” defense aims to promote non-profit educational uses, but to discourage economic uses. Remember that the legislature wants to preserve the creator’s right to make money off her creation (thereby preventing others from capitalizing on it).  If you’re borrowing someone’s content and making money, you have an uphill battle to prove that your use is fair. It’s possible, but it’s not easy.

ii. The "Nature of the Content" Factor.
The second factor focuses on the nature of the content. If it is scientific, biographical, or historical (as opposed to purely entertaining) in nature, then the public has a greater interest in accessing the information. Because the goal of fair use is to encourage the progress of knowledge, the more PBS-ish, academic, and sciencey the content is, the more likely it is that a court will say that your use is fair. If you’re borrowing a song, a computer graphic, or scenes from a Hollywood movie, the Court is more likely to find that you do not qualify for the fair use defense.

iii. The "Amount of the Work Used In Relation to the Whole" Factor.
The third factor requires the court to examine whether the defendant borrowed more than was necessary for his fair-use purpose. In other words, if you borrow someone’s content, don’t glory in it. Take sparingly, only as much as you need to get your point across. The wholesale ripping off of someone’s website is very unlikely to qualify for fair use. However, a few quotes here and there are probably okay, especially if you are commenting or criticizing the content.

If I’m reviewing a book on SEO Strategies, I can quote portions of the book. It would be best if I could think of something clever and witty to say about the excerpt. I cannot, however, cut and paste large portions of the book onto SEOmoz.org, label it “a review,” and expect that to pass fair-use muster.

iv. The "Impact on the Potential Market" Factor.
This is everyone’s favorite factor, including mine. This factor indicates that the more the market for the creator’s work is harmed, the more likely it is that your use will not be considered fair.

For example, if you take a graphic that someone else is trying to make money off of, and you provide it for free on your site, you are hurting the other guy’s ability to charge for it. Do not merely reproduce someone else’s work. When you do that, you are creating a substitute product and preventing the owner from monetizing the original product. It’s better to use a small or unimportant (preferably both) piece of the work so that you are complimenting rather than supplanting the copyright holder’s product. The more "transformative" or "productive" the copy is, as opposed to a simple simulacra, the better the chances are that your use is a "fair use" under Section 107.

Okay. Courts evaluate each case by examining it through these four factors. Often, judges come up with different results.

⇒ But I thought I had a First Amendment Right to free speech.

I sometimes hear people claiming that they have a First Amendment right to borrow content from other sources. However, this only worked one time (Triangle Publ’ns, Inc. v Knight-Ridder Newspapers, Inc., 626 F.2d 1171 (5th Cir. 1980)) and on pretty narrow circumstances, so I wouldn’t mortgage the farm on this defense. I would basically forget it.

While this isn’t strictly speaking a “fair use” issue, it seems like a good time to dispel the Free Speech myth. I wouldn’t want mozzers embarrassing themselves by responding to claims of copyright infringements with arguments about Free Speech.

The First Amendment to the United States Constitution guarantees that “Congress shall make no law…abridging the freedom of speech….” It turns out that this blanket promise is neither possible nor desirable. Sometimes it’s okay to regulate speech (libel anyone?). Most people believe that copyright is one of those times.

There is a precious and important distinction between an idea and the expression of that idea. Copyright doesn’t apply to ideas, but it does apply to certain expressions of those ideas. This distinction allows us to create laws that encourage the dissemination of knowledge (ideas), while simultaneously incentivizing that dissemination by protecting the author’s unique expression of those ideas.

Further, if you consult an attorney about a claim of copyright infringement and she spouts off about free speech and neglects to discuss fair use, consider seeking a second opinion.

⇒ Specific Applications:

Alright. Now I want to keep it real by going over some factual applications of the fair use doctrine.

    → Can I quote someone on my website?

Generally speaking, if you only use a short excerpt and have something interesting to say about the original source, you’re never going to run into a claim of copyright infringement.

Why is this? Remember that you’re more likely to be in the clear if your use of the quote is not-for-profit, sciencey, minimal, and acts as a compliment to the original source, not a replacement. Here, an interview with Brangelina is clearly not sciencey (unless your blog post is about the vapidness of modern culture perhaps), so that counts against you. However, assuming that you’re not making any money off your blog, you only excerpted a small portion, and you didn’t harm the market for the full interview, you can most likely still qualify for fair use.

However, if you cut and paste large portions of the interview from a teen-girl-squad-type fashion magazine onto your celebrity gossip blog, and you’ve got paid advertising on your site, then you should expect to receive a nasty-gram from a man in an expensive suit. Your best option here is to get permission first.

    → Can I post someone else’s graphic on my website if I give credit to them?

You can probably get away with posting a thumbnail of a graphic, but not the full size. It doesn’t matter that you credited the original author. You need to get permission to post the full-sized graphic. And this analysis may change if there is a market for thumbnails. For more information, read the case of Kelly v. Arriba Soft Corporation, 336 F.3d 811(9th Cir. Cal. 2003)

    → Is my software vulnerable to fair use?

It is considered within the scope of fair use for a competitor to obtain access to the ideas embodied in software through the object language and then translate it into source code for the sole purpose of determining how the software works. Remember our discussion of the First Amendment. There is a distinction between ideas and expression. Copyright does not protect ideas, but it does protect expression. Under this reasoning, at least one Court has ruled that reverse engineering object code (the expression) to reveal how the software works (the idea), is permissible under current copyright rules. If you want to read this case, please consults Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1993). Thus, the process of disassembly or decompilation is protected by fair use to the extent necessary to reveal the unprotected elements of the copyrighted materials.

    → Is parody considered “fair use”?

Thank Learnedhand most parody is considered fair use! Where would we be without SNL? Sadly, I had to write that “most” parody is considered fair use instead of “all.” Not all judges have a sense of humor, unfortunately. Some judges insist that parody is only fair use where the original source is the “object” or “target” of parody. If the copyrighted material is merely used as a weapon to criticize something else, then it may not qualify as fair use. For further reading consider the case of Dr. Seuss Enterprises, L.P. v. Penguin Books U.S. A. Inc., 924 F. Suppo. 1559 (S.D. Cal. 1996). The court in that case determined that the defendant was not entitled to a fair use defense when he applied Dr. Seuss rhymes, illustrations, and rhythms to the O.J. Simpson murder trial without commenting on the deep themes of "The Cat in the Hat."

Judges who support this view believe that a parody must do more than be entertaining (booh!). Instead, it must make some comment or criticism about the original work. The concern is that unless the parody makes some comment or criticism, then it is really just a derivative work based on the original and permission is required.

Friends, I want to wrap up this first post on fair use. I hope that you have found it helpful because I endeavor to be useful. 

As always, if you have any questions or concerns, please let me know in a comment, email, or PM.

Best Regards,
Sarah