A Brief Guide to the Factors of the Fair Use of Copyrighted Materials

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Why You Should See an Attorney

Copyright is a complex area of law, and fair use is one of the more complex subjects inside of it. Fair use is surrounded by a great deal of "case law" (arguments made in front of courts) that is difficult for a layperson to parse. Online guides, including this one, cannot cover the breadth of the issue and should not be used as advice for your particular situation. Copyright law allows a winner in court to potentially receive from the loser both court costs and attorney fees. If you have a strong case, it may ultimately cost you nothing but your time to bring it. If you want to use something and wonder if your use would be fair use, you need an attorney to analyze your specific factual situation. Many copyright attorneys offer free consultation, and some will do it by e-mail. Write to an attorney today and take advantage of it!

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Copyright - A Quick Background

If you are a blogger or some other digital wizard, you've probably thought about the "fair use" of materials you find on the Internet. The U.S. Constitution preserves "the exclusive right to their respective writings" of authors to their works for "limited times" (Article I, Section 8, Clause 8). This puts copyright law on equal footing with the 1st Amendment (your right to free speech). U.S. Congress passed a scheme of laws as a framework to enforce the Constitution. We call these laws "intellectual property" laws, and they have changed substantially over the years, becoming stricter.

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The Right of a Copyright Holder

The copyright laws are found in title 17 of the U.S. Code. These laws give authors the exclusive right to: 1. reproduce the work; 2. prepare derivative works; 3. to distribute copies to the public; 4. to perform the work, if it is an audiovisual work (like a play); 5. to display the work publicly; and 6. in the case of sound recordings (MP3s), to perform the work publicly by means of a digital audio transmission. Copyright is automatic, meaning it comes into being at the moment the work is created (when you finish writing a story, or complete a painting, or song, etc...). This means that just about anything you encounter on the Internet (from Youtube videos to blog entries) is copyrighted, regardless of whether it has a little (c) notice by it or whether it has been registered (there are, of course, good reasons to do both!). So how do you know when using the material is allowed? When can you use it, and for what purpose?

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The Factors of Fair Use

The Factors of Fair Use The largest exception to copyright is in 17 U.S.C. ? 107 - called Fair Use. ? 107 lists "factors" that determine whether a use is "fair use": 1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational use; 2. the nature of the copyright work; 3. the amount and substantiality of the portion used in relation to the copyrighted works as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work. The court decides what fair use is by looking at the factors. To understand whether a court might find your use to be "fair use", you need to learn to analyze them, too.

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Analyzing Fair Use

In Oregon (and the West in general) we are in the 9th judicial circuit, and we follow that court's method of analyzing fair use. The 9th circuit is, in turn, following the U.S. Supreme Court, which has said that we must weigh all the factors, letting no single factor control the analysis. A leading case for analysis is the "Napster Case", which the 9th circuit heard arguments for in October of 2000, and issued an opinion for in 2001 (you can look it up on Google using the "citation" 239 F.3d 1004).

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The Napster Analysis

In the Napster Case, the court found that the use: 1. was of a "non-transformative" character (meaning MP3 files were copied, or a writing was copy-and-pasted, rather being used to create something new and creative, but not derivative), and that the use was "commercial", because the Napster users were, at least in some cases, avoiding paying for something; 2. that the nature of the copyrighted work (the MP3s) was "creative" and therefore "closer to the core" of works meant to be protected; 3. that the entire work was copied; 4. and that not only was the existing market affected (by reducing the number of potential buyers), but also that the copyright holder was potentially being denied entry into a new market - the market for digital distribution of music. And we know what happened to Napster.

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The Case of the News Clipping Blog

Local courts like district courts are less authoritative than the 9th circuit or the U.S. Supreme Court, because their decisions are more likely to be appealed and overturned, but they are rich with case examples. The next case from Nevada illustrates something many bloggers do every day. Mr. N is a licensed realtor in Nevada. He has a blog that provides free information related to home ownership. One day, Mr. N found a news story published in the Las Vegas Review Journal about a new federal housing program. So he copy-and-pasted part of the news story to his blog. And then he was sued. The court found Mr. N's use was fair and dismissed the case. Note that the district court while discussing factor 2 references a 9th circuit case, which allowed re-publication of a news report video because the video was "informational" (the news) rather than creative. (305 F.3d 924 (9th Cir. 2002) on Google).

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News Clipping Analysis

1. The use was non-transformative (copy-and-paste), and it was commercial in nature, because although Mr. N offered the information for free, part of the purpose of the blog was to raise his stature in the community as a real estate professional. 2. The nature of the work was both factual (news reporting) and commentary (the reporter's opinions). Mr. N copied only the factual, or news reporting, part, so this factor is in favor of fair use. 3. Mr. N copied only about 8 lines of 30 - just as much as was necessary to provide relevant factual information. This weighed in favor of fair use. 4. The use was likely to have little or no impact on the market for the news article because the portion he copied did not contain the author's commentary, and so should not dampen enthusiasm to read the full article; also, Mr. N provided a link to the full news article. This supports a finding of fair use.

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The DMCA, a Youtube Example

Mrs. L videotaped her kids dancing to a Prince song ("Let's Go Crazy") and posted the video on Youtube. Universal (who owns the rights to the music) sent a Digital Millennium Copyright Act notice to Youtube to have the video taken down, which Youtube did. Mrs. L then filed a counter-notice, claiming her use was fair use, and Youtube reposted the video. The DMCA (17 U.S.C. ? 512) allows copyright owners to give a "takedown" notice to hosting services that have copyrighted works. After receiving the notice, the host must take down the copyrighted work, or risk sharing liability for copyright violation. In part (g) of the DMCA is the right of the user to make a "counter notification", after which the host should put back up the material. Mrs. L and Universal are arguing about whether the copyright holder must consider fair use before sending a takedown, and whether Universal did. As of this date (6/2011) the issue is unsettled. It may eventually reach a higher court on appeal.

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Beware the Youtube Music Video

Remember that one of exclusive rights a music copyright holder has is public broadcast by digital transmission (Youtube). Another case analyzing fair use (rather than DMCA) on Youtube is the Case of the Gas Price Politics, where-in Mr. Jackson Browne is suing John McCain for using one of his songs ("Running on Empty") as the background music to a political commercial that was posted on Youtube. The court (district court in California) denied a motion by Mr. McCain to dismiss the case, stating there was a genuine issue of "fair use" involved. You can find the case at 611 F. Supp. 2d 1073 on Google. What do you think would happen if the court fully analyzed it using the factors? Who would win? Think twice before using someone else's song MP3 in a Youtube video. You could be sued. Whether it is intelligent or not to harass fans who make fan music videos is a separate question.

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Legal Disclaimer

You are not my client, and this article is not meant as legal advice - it is only for general knowledge. If you have a copyright issue, you should see an attorney.

Additional Resources

A blogger's legal guide from the EFF: https://www.eff.org/issues/bloggers/legal/liability/IP A guide to Youtube removals from the EFF: https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals

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