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Fair use is a limitation and exception
Limitations and exceptions to copyright
Limitations and exceptions to copyright are provisions in copyright law which allow for copyrighted works to be used without a license from the copyright owner....

 to the exclusive right
Exclusive right
In Anglo-Saxon law, an exclusive right is a de facto, non-tangible prerogative existing in law to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit. A "prerogative" is in effect an exclusive right...

 granted by copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...

 law to the author of a creative work. In United States copyright law
United States copyright law
The copyright law of the United States governs the legally enforceable rights of creative and artistic works under the laws of the United States.Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution...

, fair use is a doctrine
Legal doctrine
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows...

 that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test
Balancing test
A balancing test is any judicial test in which the jurists weigh the importance of multiple factors in a legal case. Proponents of such tests argue that they allow a deeper consideration of complex issues than a bright line rule can allow...

. The term fair use originated in the United States. A similar principle, fair dealing
Fair dealing
Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, which is found in many of the common law jurisdictions of the Commonwealth of Nations....

, exists in some other common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 jurisdictions. Civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 jurisdictions have other limitations and exceptions to copyright
Limitations and exceptions to copyright
Limitations and exceptions to copyright are provisions in copyright law which allow for copyrighted works to be used without a license from the copyright owner....

.

Fair use under United States law


The legal concept of "test copyright" was first ratified by the Kingdom of Great Britain's Statute of Anne
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...

 of 1709. As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts created a doctrine of "fair abridgment" in Gyles v Wilcox
Gyles v Wilcox
Gyles v Wilcox 26 ER 489 was a decision of the Court of Chancery of England that established the doctrine of fair abridgement, which would later evolve into the concept of fair use. The case was heard and the opinion written by Philip Yorke, 1st Earl of Hardwicke, and concerned Fletcher Gyles, a...

, which eventually evolved into the modern concept of "fair use", that recognized the utility of such actions. The doctrine only existed in the US as common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 until it was incorporated into the Copyright Act of 1976, .
The four factors of analysis for fair use set forth above derive from the classic opinion of Joseph Story
Joseph Story
Joseph Story was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845. He is most remembered today for his opinions in Martin v. Hunter's Lessee and The Amistad, along with his magisterial Commentaries on the Constitution of the United States, first...

 in Folsom v Marsh, 9 F.Cas. 342 (1841), in which the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington
George Washington
George Washington was the dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...

 in order to produce a separate two-volume work of his own. The court rejected the defendant's fair use defense

with the following explanation:
Once these factors were codified as guidelines in , they were not rendered exclusive. The section was intended by Congress to restate, but not replace, the prior judge-made law. Courts are still entitled to consider other factors as well.

Fair use tempers copyright's exclusive rights to serve the purpose of copyright law, which the US Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

 defines as the promotion of "the Progress of Science and useful Arts" (Art. I, § 8, cl. 8
Copyright Clause
Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress:- Other Terms :This clause is also referred to as:* Copyright and Patent Clause* Patent and Copyright Clause...

). This principle applies particularly well to the case of criticism and also sheds light on various other limitations on copyright's exclusive rights, particularly the scenes à faire
Scenes à faire
Scène à faire is a scene in a book or film which is almost obligatory for a genre of its type. In the U.S...

doctrine.

Purpose and character


The first factor is regarding whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for reasons of personal profit. To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative
Transformation (law)
In United States copyright law, transformation is a possible justification that use of a copyrighted work may qualify as fair use, i.e., that a certain use of a work does not infringe its holder's copyright due to the public interest in the usage...

, as opposed to merely derivative
Derivative work
In United States copyright law, a derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work .-Definition:...

.

When Tom Forsythe appropriated Barbie
Barbie
Barbie is a fashion doll manufactured by the American toy-company Mattel, Inc. and launched in March 1959. American businesswoman Ruth Handler is credited with the creation of the doll using a German doll called Bild Lilli as her inspiration....

 dolls for his photography project "Food Chain Barbie", Mattel
Mattel
Mattel, Inc. is the world's largest toy company based on revenue. The products it produces include Fisher Price, Barbie dolls, Hot Wheels and Matchbox toys, Masters of the Universe, American Girl dolls, board games, and, in the early 1980s, video game consoles. The company's name is derived from...

 lost its claims of copyright and trademark infringement against him because his work effectively parodies
Parody
A parody , in current usage, is an imitative work created to mock, comment on, or trivialise an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation...

 Barbie and the values she represents. But when Jeff Koons
Jeff Koons
Jeffrey "Jeff" Koons is an American artist known for his reproductions of banal objects—such as balloon animals produced in stainless steel with mirror finish surfaces....

 tried to justify his appropriation of Art Rogers' photograph "Puppies" in his sculpture "String of Puppies" with the same parody defense, he lost because his work was not presented as a parody of Rogers' photograph in particular, but of society at large, which was deemed insufficiently justificatory.

However, since this case, courts have begun to emphasize the first fair use factor—assessing whether the alleged infringement has transformative use as described by the Hon. Judge Pierre N. Leval
Pierre N. Leval
Pierre Nelson Leval is a judge on the United States Court of Appeals for the Second Circuit. At the time of his appointment by President Bill Clinton in 1993, he was a United States District Court Judge in the Southern District of New York....

. More recently, Koons was involved in a similar case with commercial photographer Andrea Blanch, regarding his use of her photograph for a painting, whereby he appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. In this case, Koons won; the case sets a favourable precedent for appropriation art where the use is deemed transformative.

The subfactor mentioned in the legislation above, "whether such use is of a commercial nature or is for nonprofit educational purposes", has recently been deemphasized in some Circuits "since many, if not most, secondary uses seek at least some measure of commercial gain from their use". More important is whether the use fulfills any of the "preamble purposes" also mentioned in the legislation above, as these have been interpreted as paradigmatically "transformative". Although Judge Pierre Leval has distinguished the first factor as "the soul of fair use", it alone is not determinative. For example, not every educational usage is fair. See also LA Times v Free Republic, described below.

Nature of the copied work


Although the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 has ruled that the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional.

To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright
Idea-expression divide
The idea–expression divide or idea–expression dichotomy limits the scope of copyright protection by differentiating an idea from the expression or manifestation of that idea.The case of Baker v. Selden was the first U.S...

—only their particular expression or fixation merits such protection. On the other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The Zapruder film
Zapruder film
The Zapruder film is a silent, color motion picture sequence shot by private citizen Abraham Zapruder with a home-movie camera, asU.S. President John F...

 of the assassination of President Kennedy, for example, was purchased and copyrighted by Time magazine. Yet their copyright was not upheld, in the name of the public interest, when they tried to enjoin the reproduction of stills from the film in a history book on the subject in Time Inc v Bernard Geis Associates.

Following the decisions of the Second Circuit in Salinger v Random House Inc and in New Era Publications Int'l v Henry Holt & Co, the aspect of whether the copied work has been previously published suddenly trumped all other considerations because of, in the words of one commentator, "the original author's interest in controlling the circumstances of the first public revelation of his work, and his right, if he so chooses, not to publish at all". Yet some view this importation of certain aspects of France's droit moral d'artiste (moral rights of the artist) into American copyright law as "bizarre and contradictory" because it sometimes grants greater protection to works that were created for private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially conceived to protect. This is not to claim that unpublished works, or, more specifically, works not intended for publication, do not deserve legal protection, but that any such protection should come from laws about privacy, rather than laws about copyright. The statutory fair use provision was amended in response to these concerns by adding a final sentence: "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."

Amount & substantiality


The third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work. In general, the less that is used in relation to the whole, ex: a few sentences of a text for a book review, the more likely that the sample will be considered fair use. Yet see Sony Corp v Universal City Studios for a case in which substantial copying—entire programs for private viewing—was upheld as fair use, at least when the copying is done for the purposes of time-shifting. Likewise, see Kelly v Arriba Soft Corp, where the Ninth Circuit held that copying an entire photo to use as a thumbnail in online search results did not weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use". Conversely, in Harper & Row, Publishers Inc v Nation Enters, the use of fewer than 400 words from President Ford
Gerald Ford
Gerald Rudolph "Jerry" Ford, Jr. was the 38th President of the United States, serving from 1974 to 1977, and the 40th Vice President of the United States serving from 1973 to 1974...

's memoir by a political opinion magazine was interpreted as infringement because those few words represented "the heart of the book" and were, as such, substantial
Substantial similarity
Substantial similarity is the standard developed and used by United States courts to determine whether a defendant has infringed the reproduction right of a copyright. The standard arises out of the recognition that the exclusive right to make copies of a work would be meaningless if infringement...

.

Before 1991, sampling
Sampling (music)
In music, sampling is the act of taking a portion, or sample, of one sound recording and reusing it as an instrument or a different sound recording of a song or piece. Sampling was originally developed by experimental musicians working with musique concrète and electroacoustic music, who physically...

 in certain genres of music was accepted practice and such copyright considerations as these were viewed as largely irrelevant. The strict decision against rapper
Hip hop music
Hip hop music, also called hip-hop, rap music or hip-hop music, is a musical genre consisting of a stylized rhythmic music that commonly accompanies rapping, a rhythmic and rhyming speech that is chanted...

 Biz Markie
Biz Markie
Marcel Theo Hall better known by his stage name, Biz Markie, is an American rapper, beatboxer, DJ, comedian, singer, reality television personality, and commercial spokesperson. He is best known for his single "Just a Friend", an American Top 10 hit in 1989...

's appropriation of a Gilbert O'Sullivan
Gilbert O'Sullivan
Gilbert O'Sullivan is an Irish-English singer-songwriter, best known for his early 1970s hits "Alone Again ", "Clair" and "Get Down". The music magazine, Record Mirror, voted him the No...

 song in the case Grand Upright Music Ltd v Warner Bros Records Inc changed practices and opinions overnight. Samples now had to be licenced, as long as they rose "to a level of legally cognizable appropriation." In other words, de minimis
De minimis
De minimis is a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor or de minimis non curat lex .In risk assessment it refers to a level of risk that is too small to be concerned with...

sampling was still considered fair and free because, traditionally, "the law does not care about trifles." The recent Sixth Circuit Court decision in the appeal to Bridgeport Music has reversed this standing, eliminating the de minimis defense for samples of recorded music, but stating that the decision did not apply to fair use.

Effect upon work's value


The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his or her original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests not on the defendant for commercial uses
Commercialization
Commercialization is the process or cycle of introducing a new product or production method into the market. The actual launch of a new product is the final stage of new product development, and the one where the most money will have to be spent for advertising, sales promotion, and other marketing...

, but on the copyright owner for noncommercial uses. See Sony Corp v Universal City Studios, where the copyright owner, Universal
Universal Studios
Universal Pictures , a subsidiary of NBCUniversal, is one of the six major movie studios....

, failed to provide any empirical evidence that the use of Betamax
Betamax
Betamax was a consumer-level analog videocassette magnetic tape recording format developed by Sony, released on May 10, 1975. The cassettes contain -wide videotape in a design similar to the earlier, professional wide, U-matic format...

 had either reduced their viewership or negatively impacted their business. In the aforementioned Nation case regarding President Ford's memoirs, the Supreme Court labeled this factor "the single most important element of fair use" and it has indeed enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in Campbell v Acuff-Rose Music Inc that "all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation.

In evaluating the fourth factor, courts often consider two kinds of harm to the potential market of the original work: First, courts consider whether the use in question acts as a direct market
Direct market
The direct market is the dominant distribution and retail network for North American comic books. It consists of one dominant distributor and the majority of comics specialty stores, as well as other retailers of comic books and related merchandise...

 substitute for the original work. In the judgement of the Supreme Court in Acuff-Rose Music they decisively stated that, "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur". In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner's official trailers. Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licencing market. This consideration has weighed against commercial copy shops that make copies of articles in course-pack for college students, when a market already existed for the licencing of course-pack copies.

Courts recognize that certain kinds of market harm do not oppose fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism.

Fair use and professional communities


Courts, when deciding fair use cases, in addition to looking at context, amount and value of the use, also look to the standards and practices of the professional communities where the case comes from.

Practical effect of fair use defense


The practical effect of this law and the court decisions following it is that it is usually possible to quote from a copyrighted work in order to criticize or comment upon it, teach students about it, and possibly for other uses. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though he may sell his review commercially; but a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

Free Republic
Free Republic
Free Republic is a moderated Internet forum for activists, and chat site for self-described conservatives, primarily within the United States. It presents articles and comments posted pseudonymously by registered members, known as "Freepers", using screen names...

, LLC, owner of the political website freerepublic.com, was found liable for copyright infringement in LA Times v Free Republic for reproducing and archiving full-text versions of plaintiffs' news articles even though the judge found the website minimally commercial. She held that "while defendants' do not necessarily 'exploit' the articles for commercial gain, their posting to the Free Republic site allows defendants and other visitors to avoid paying the 'customary price' charged for the works."

The April 2000 opinion ruled concerning the four factors of fair use that 1) "defendants' use of plaintiffs' articles is minimally, if at all, transformative, 2) the factual content of the articles copied "weighs in favour of finding of fair use of the news articles by defendants in this case", though it didn't "provide strong support" 3) concerning the amount and substantiality prong, "the wholesale copying of plaintiffs' articles weighs against the finding of fair use", and 4) the plaintiffs showed that they were trying to exploit the market for viewing their articles online and defendants did not rebut their showing by proving an absence of usurpation harm to plaintiffs. Ultimately the court found "that the defendants may not assert a fair use defense to plaintiffs' copyright infringement claim".

Fair use as a defense


The Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 described fair use as an affirmative defense
Affirmative defense
A defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. ...

 in Campbell v Acuff-Rose Music, Inc. This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that his use was "fair" and not an infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie
Prima facie
Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...

" case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work borrowed only a small amount
De minimis
De minimis is a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor or de minimis non curat lex .In risk assessment it refers to a level of risk that is too small to be concerned with...

, for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense.

Since the defendant's burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense. This type of lawsuit is part of a much larger problem in First Amendment law; see Strategic lawsuit against public participation
Strategic lawsuit against public participation
A strategic lawsuit against public participation is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition....

.

Since paying a royalty fee may be much less expensive than having a potential copyright suit threaten the publication of a completed work in which a publisher has invested significant resources, many authors may seek a licence even for uses that copyright law ostensibly permits without liability.

The frequent argument over whether fair use is a "right" or a "defense" is generated by confusion over the use of the term "affirmative defense." "Affirmative defense" is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between "rights" and "defenses", and so it does not characterize the substance of the defendant's actions as "not a right but a defense".

In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in the 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...

 ("EFF"), the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...

, the National Coalition Against Censorship
National Coalition Against Censorship
The National Coalition Against Censorship , founded in 1974, is an alliance of 50 national non-profit organizations, including literary, artistic, religious, educational, professional, labor, and civil liberties groups...

, the American Library Association
American Library Association
The American Library Association is a non-profit organization based in the United States that promotes libraries and library education internationally. It is the oldest and largest library association in the world, with more than 62,000 members....

, numerous clinical programs at law schools, and others. The "Chilling Effects" archive was established in 2002 as a coalition of several law school clinics and the EFF to document the use of cease and desist
Cease and desist
A cease and desist is an order or request to halt an activity and not to take it up again later or else face legal action. The recipient of the cease-and-desist may be an individual or an organization....

 letters. Most recently, in 2006, Stanford University
Stanford University
The Leland Stanford Junior University, commonly referred to as Stanford University or Stanford, is a private research university on an campus located near Palo Alto, California. It is situated in the northwestern Santa Clara Valley on the San Francisco Peninsula, approximately northwest of San...

 began an initiative called "The Fair Use Project
Fair Use Project
The Fair Use Project is part of the Stanford Center for Internet and Society at Stanford Law School. Founded in 2006, it offers legal assistance to "clarify, and extend, the boundaries of "fair use" in order to enhance creative freedom." It is headed by Tony Falzone, lecturer at Stanford Law. It...

" (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations.

In 2009, fair use appeared as a defense in lawsuits against filesharing
Trade group efforts against file sharing
Impact of illegal downloading on the film industryArts and media industry trade groups such as the Recording Industry Association of America and Motion Picture Association of America strongly oppose and attempt to prevent copyright infringement through file sharing...

. Charles Nesson
Charles Nesson
Charles Rothwell Nesson is the William F. Weld Professor of Law at Harvard Law School and the founder of the Berkman Center for Internet & Society and of the Global Poker Strategic Thinking Society. He is author of Evidence, with Murray and Green, and has participated in several cases before the...

 argued that file-sharing qualifies as fair use in his defense of alleged filesharer Joel Tenenbaum. Kiwi Camara
Kiwi Camara
Kiwi Alejandro Danao Camara , also known as K.A.D. Camara, is a Filipino American attorney. In 2001, he became the youngest person to matriculate at Harvard Law School, from which he graduated magna cum laude in 2004. He was also involved in a racial controversy at the school that attracted...

, defending alleged filesharer Jammie Thomas, announced a similar defense.

On September 2, 2009 Israeli District court ruled out a detailed decision not allowing disclosure of "John Doe"'s details for the request of the FA Premier League
FA Premier League
The Premier League is an English professional league for association football clubs. At the top of the English football league system, it is the country's primary football competition. Contested by 20 clubs, it operates on a system of promotion and relegation with The Football League. The Premier...

 based on several reasons, but the most interesting were that "fair use" under the new Israeli law of 2007 (which is based on the US 4 factors test) is a right
Rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...

 and not merely a defense. The court specifically states that the public may have base for a legal cause of action if its fair use right is infringed by the copyright holder. Other important decision in said judgment is the fact that the court finds streaming Internet filesharing site of live soccer games not infringing copyright as this use is fair use (mainly due to the importance of certain sport events and the public's right). The court analyzes the 4 factors and decides that due to such importance of sporting games (and other less important factors), such use is fair.

The economic benefit of fair use


A balanced copyright law provides an economic benefit to many high tech businesses such as search engines and software developers. Fair Use is also crucial to non-technology industries such as insurance, legal services, and newspaper publishers. On September 12, 2007, the Computer and Communications Industry Association (CCIA), a group representing companies including Google
Google
Google Inc. is an American multinational public corporation invested in Internet search, cloud computing, and advertising technologies. Google hosts and develops a number of Internet-based services and products, and generates profit primarily from advertising through its AdWords program...

 Inc., Microsoft
Microsoft
Microsoft Corporation is an American public multinational corporation headquartered in Redmond, Washington, USA that develops, manufactures, licenses, and supports a wide range of products and services predominantly related to computing through its various product divisions...

 Inc., Oracle Corporation
Oracle Corporation
Oracle Corporation is an American multinational computer technology corporation that specializes in developing and marketing hardware systems and enterprise software products – particularly database management systems...

, Sun Microsystems
Sun Microsystems
Sun Microsystems, Inc. was a company that sold :computers, computer components, :computer software, and :information technology services. Sun was founded on February 24, 1982...

, Yahoo and other high tech companies, released a study that found that Fair Use exceptions to US copyright laws were responsible for more than $4,500 billion dollars in annual revenue for the United States economy representing one-sixth of the total US GDP. The study was conducted using a methodology developed by the World Intellectual Property Organization
World Intellectual Property Organization
The World Intellectual Property Organization is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative activity, to promote the protection of intellectual property throughout the world"....

. The study found that fair use dependent industries are directly responsible for more than eighteen percent of US economic growth and nearly eleven million American jobs. “As the United States economy becomes increasingly knowledge-based, the concept of fair use can no longer be discussed and legislated in the abstract. It is the very foundation of the digital age and a cornerstone of our economy,” said Ed Black, President and CEO of CCIA. “Much of the unprecedented economic growth of the past ten years can actually be credited to the doctrine of fair use, as the Internet itself depends on the ability to use content in a limited and unlicenced manner."

Fair use and parody


Producers or creators of parodies
Parody
A parody , in current usage, is an imitative work created to mock, comment on, or trivialise an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation...

 of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. These fair use cases distinguish between parodies (using a work in order to poke fun at or comment on the work itself) and satire
Satire
Satire is primarily a literary genre or form, although in practice it can also be found in the graphic and performing arts. In satire, vices, follies, abuses, and shortcomings are held up to ridicule, ideally with the intent of shaming individuals, and society itself, into improvement...

s (using a work to poke fun at or comment on something else). Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.

In Campbell v Acuff-Rose Music Inc Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 recognized parody as a fair use, even when done for profit. Roy Orbison
Roy Orbison
Roy Kelton Orbison was an American singer-songwriter, well known for his distinctive, powerful voice, complex compositions, and dark emotional ballads. Orbison grew up in Texas and began singing in a rockabilly/country & western band in high school until he was signed by Sun Records in Memphis...

's publisher, Acuff-Rose Music Inc
Acuff-Rose Music
Acuff-Rose Music was an American music publishing firm formed by Roy Acuff and Fred Rose in Nashville, Tennessee. Acuff-Rose's honest behavior towards their writers set them apart from other music publishing firms at the time and lead them to fame throughout the 50's, 60's, 70's.-History:Acuff-Rose...

, had sued 2 Live Crew
2 Live Crew
2 Live Crew was a hip hop group from Miami, Florida. They caused considerable controversy with the sexual themes in their work, particularly on their 1989 album As Nasty As They Wanna Be.- Early career :...

 in 1989 for their use of Orbison's "Oh, Pretty Woman
Oh, Pretty Woman
"Oh, Pretty Woman" is a song, released in August 1964, which was a worldwide success for Roy Orbison. Recorded on the Monument Records label in Nashville, Tennessee, it was written by Roy Orbison and Bill Dees. The song spent three weeks at number one on the Billboard Hot 100...

" in a mocking rap version with altered lyrics. The Supreme Court viewed 2 Live Crew's version as a ridiculing commentary on the earlier work, and ruled that when the parody was itself the product rather than used for mere advertising, commercial sale did not bar the defense. The Campbell court also distinguished parodies from satire
Satire
Satire is primarily a literary genre or form, although in practice it can also be found in the graphic and performing arts. In satire, vices, follies, abuses, and shortcomings are held up to ridicule, ideally with the intent of shaming individuals, and society itself, into improvement...

, which they described as a broader social critique not intrinsically tied to ridicule of a specific work, and so not deserving of the same use exceptions as parody because the satirist's ideas are capable of expression without the use of the other particular work.

A number of appellate decisions have recognized parody as a protected fair use, including both the Second
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...

 (Leibovitz v Paramount Pictures Corp) and Ninth
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...

 Circuits (Mattel v Walking Mountain Productions). Most recently, in Suntrust v Houghton Mifflin, a suit was brought unsuccessfully against the publication of The Wind Done Gone
The Wind Done Gone
The Wind Done Gone is the first novel written by Alice Randall. It was a bestselling historical parallel novel that reinterprets the famous American novel Gone with the Wind by Margaret Mitchell.- Plot summary :...

, which reused many of the characters and situations from Gone with the Wind
Gone with the Wind
The slaves depicted in Gone with the Wind are primarily loyal house servants, such as Mammy, Pork and Uncle Peter, and these slaves stay on with their masters even after the Emancipation Proclamation of 1863 sets them free...

, but told the events from the point of view of the slaves rather than the slaveholders. The Eleventh Circuit
United States Court of Appeals for the Eleventh Circuit
The United States Court of Appeals for the Eleventh Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Middle District of Alabama...

, applying Campbell, recognized that The Wind Done Gone was a protected parody, and vacated the district court's injunction against its publication.

Fair use on the Internet


A US court case in 2003, Kelly v Arriba Soft Corporation, provides and develops the relationship between thumbnail
Thumbnail
Thumbnails are reduced-size versions of pictures, used to help in recognizing and organizing them, serving the same role for images as a normal text index does for words...

s, inline linking
Inline linking
Inline linking is the use of a linked object, often an image, from one site by a web page belonging to a second site...

 and fair use. In the lower District Court case on a motion for summary judgment
Summary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....

, Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly's website in Arriba's image search engine
Web search engine
A web search engine is designed to search for information on the World Wide Web and FTP servers. The search results are generally presented in a list of results often referred to as SERPS, or "search engine results pages". The information may consist of web pages, images, information and other...

. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...

, who argued that it is clearly covered under fair use.

On appeal, the 9th Circuit Court of Appeals found in favour of the defendant. In reaching its decision, the court utilized the above-mentioned four-factor analysis. Firstly, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution like the original artwork was. Secondly, the fact that the photographs had already been published diminished the significance of their nature as creative works. Thirdly, although normally making a "full" replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails. To the contrary, the thumbnail searches could increase exposure of the originals. In looking at all these factors as a whole, the court found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003. The remaining issues were resolved with a default judgment
Default judgment
Default judgment is a binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law...

 after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement.

In August 2008 US District Judge Jeremy Fogel of San Jose, California
San Jose, California
San Jose is the third-largest city in California, the tenth-largest in the U.S., and the county seat of Santa Clara County which is located at the southern end of San Francisco Bay...

 ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material. The case involved Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania
Gallitzin, Pennsylvania
Gallitzin is a borough bordered by Gallitzin Township and Tunnelhill in Cambria County, Pennsylvania, in the United States. Standing northwest of Altoona, it was first incorporated in 1872, and named for Prince Gallitzin, who founded the Catholic town of Loretto, Cambria County. Coal-mining and...

, who made a home video of her thirteen-month-old son dancing to Prince's song Let's Go Crazy
Let's Go Crazy
"Let's Go Crazy" is a 1984 song by Prince and The Revolution, from the album, Purple Rain. It was the opening track on both the album, and the film Purple Rain. "Let's Go Crazy" is one of Prince's most popular songs, and is almost always a staple for concert performances, often segueing into other...

 and posted the video on YouTube
YouTube
YouTube is a video-sharing website, created by three former PayPal employees in February 2005, on which users can upload, view and share videos....

. Four months later, Universal Music, the owner of the copyright to the song, ordered YouTube to remove the video enforcing the Digital Millennium Copyright Act
Digital Millennium Copyright Act
The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...

. Lenz notified YouTube immediately that her video was within the scope of fair use, and demanded that it be restored. YouTube complied after six weeks, not two weeks as required by the Digital Millennium Copyright Act
Digital Millennium Copyright Act
The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...

. Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair-use of the song.

Common misunderstandings


Fair use is commonly misunderstood because of its deliberate ambiguity. Here are some of the more common misunderstandings with explanations of why they are wrong:
  • Any use that seems fair is fair use. In the law, the term fair use has a specific meaning that only partly overlaps the plain-English meaning of the words. While judges have much leeway in deciding how to apply fair use guidelines, not every use that is commonly considered "fair" counts as fair use under the law.
  • Fair use interpretations are unique and limited. Fair use is decided on a case by case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different time can make a difference due to changing social, technological, or other surrounding circumstances.
  • If it's not fair use, it's copyright infringement. Fair use is only one of many limitations, exceptions, and defenses to copyright infringement. For instance, the Audio Home Recording Act
    Audio Home Recording Act
    The Audio Home Recording Act of 1992 amended the United States copyright law by adding Chapter 10, "Digital Audio Recording Devices and Media"...

     establishes that it is legal in some circumstances to make copies of audio recordings for non-commercial personal use.
  • It's copyrighted, so it can't be fair use. On the contrary, fair use applies only to copyrighted works, describing conditions under which copyrighted material may be used without permission. If a work is not copyrighted, fair use does not come into play, since public-domain works can be used for any purpose without violating copyright law.
    • Note: In some countries (including the United States of America), the mere creation of a work establishes copyright over it, and there is no legal requirement to register or declare copyright ownership
  • Acknowledgment of the source makes a use fair. Giving the name of the photographer or author may help, but it is not sufficient on its own. While plagiarism
    Plagiarism
    Plagiarism is defined in dictionaries as the "wrongful appropriation," "close imitation," or "purloining and publication" of another author's "language, thoughts, ideas, or expressions," and the representation of them as one's own original work, but the notion remains problematic with nebulous...

     and copyright violation are related matters—-both can, at times, involve failure to properly credit sources—-they are not identical. Plagiarism—using someone's words, ideas, images, etc. without acknowledgment—is a matter of professional ethics. Copyright is a matter of law, and protects exact expression, not ideas. One can plagiarize even a work that is not protected by copyright, such as trying to pass off a line from Shakespeare as one's own. On the other hand, citing sources generally prevents accusations of plagiarism, but is an insufficient defense against copyright violations. For example, reprinting a copyrighted book without permission, while citing the original author, would be copyright infringement but not plagiarism.
  • Noncommercial use is invariably fair. Not true, though a judge may take the profit motive or lack thereof into account. In LA Times v Free Republic, the court found that the noncommercial use of LA Times content by the Free Republic Web site was in fact not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for.
  • Strict adherence to fair use protects you from being sued. Fair use is an affirmative defense against an infringement suit; it does not restrain anyone from suing. The copyright holder may legitimately disagree that a given use is fair, and they have the right to have the matter decided by a court. Thus, fair use does not guarantee that a lawsuit will be prevented.
  • The lack of a copyright notice means the work is public domain. Not usually true. United States law in effect since March 1, 1989, has made copyright the default for newly created works. For a recent work to be in the public domain the author must specifically opt-out of copyright. For works produced between January 1, 1923 and March 1, 1989, copyright notice is required; however, registration was not required and between January 1, 1978 and March 1, 1989 lack of notice is not necessarily determinative, if attempts were made immediately to correct the lack of notice. Any American works that did not have formal registration or notice fell into the Public Domain if registration was not made in a timely fashion. For international works, the situation is even more complex. International authors who failed to provide copyright notice or register with the US copyright office are given additional contemporary remedies that may restore American copyright protection given certain conditions. International authors/corporations who fail to meet these remedies forfeit their copyright. An example of a company who failed to prove copyright was Roland Corporation
    Roland Corporation
    is a Japanese manufacturer of electronic musical instruments, electronic equipment and software. It was founded by Ikutaro Kakehashi in Osaka on April 18, 1972, with ¥33 million in capital. In 2005 Roland's headquarters relocated to Hamamatsu in Shizuoka Prefecture. Today it has factories in Japan,...

     and their claimed copyright on the sounds contained in their MT-32 synthesizer.
  • It's okay to quote up to 300 words. The 300-word limit is reported to be an unofficial agreement, now long obsolete, among permissions editors in the New York publishing houses: "I'll let you copy 300 words from our books if you let us copy 300 words from yours." It runs counter to the substantiality standard. As explained above, the substantiality of the copying is more important than the actual amount. For instance, copying a complete short poem is more substantial than copying a random paragraph of a novel; copying an 8.5×11-inch photo is more substantial than copying a square foot of an 8×10-foot painting. In 1985, the US Supreme Court held that a news article's quotation of approximately 300 words from former President Gerald Ford's 200,000 word memoir was sufficient to constitute an infringement of the exclusive publication right in the work.
  • You can deny fair use by including a disclaimer. Fair use is a right granted to the public on all copyrighted work. Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use a non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or licence agreements may take precedence over fair use rights.
  • If you're copying an entire work, it's not fair use. While copying an entire work may make it harder to justify the amount and substantiality test, it does not make it impossible that a use is fair use. For instance, in the Betamax case, it was ruled that copying a complete television show for time-shifting purposes is fair use.
  • If you're selling for profit, it's not fair use. While commercial copying for profit work may make it harder to qualify as fair use, it does not make it impossible. For instance, in the case Campbell v. Acuff-Rose Music, Inc.
    Campbell v. Acuff-Rose Music, Inc.
    Campbell v. Acuff-Rose Music, 510 U.S. 569 was a United States Supreme Court copyright law case that established that a commercial parody can qualify as fair use...

    , it was ruled that commercial parody can be fair use. Hip-hop group 2 Live Crew
    2 Live Crew
    2 Live Crew was a hip hop group from Miami, Florida. They caused considerable controversy with the sexual themes in their work, particularly on their 1989 album As Nasty As They Wanna Be.- Early career :...

     successfully made a parody, sold for profit, of the song "Oh, Pretty Woman
    Oh, Pretty Woman
    "Oh, Pretty Woman" is a song, released in August 1964, which was a worldwide success for Roy Orbison. Recorded on the Monument Records label in Nashville, Tennessee, it was written by Roy Orbison and Bill Dees. The song spent three weeks at number one on the Billboard Hot 100...

    ".

Influence internationally


While many other countries recognize similar exceptions to copyright, only the United States and Israel fully recognize the concept of fair use.

While influential in some quarters, other countries often have drastically different fair use criteria to the US, and in some countries there is little or no fair use defense available. Even within Europe, rules vary greatly between countries. Some countries have the concept of fair dealing
Fair dealing
Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, which is found in many of the common law jurisdictions of the Commonwealth of Nations....

 instead of fair use. However many countries have some reference to an exemption for educational use, although the extent of this exemption may vary widely.

Fair dealing in Canada


The Copyright Act
Copyright Act of Canada
Copyright Act of Canada is Canada's federal statute governing copyright law in Canada. The Copyright Act of Canada which was first passed in 1921 and substantially amended in 1988 and 1997. In 2005 an attempt to amend the Canadian Copyright Act was made but Bill C-60 did not pass into law before...

establishes fair dealing
Fair dealing
Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, which is found in many of the common law jurisdictions of the Commonwealth of Nations....

 in Canada, which allows specific exceptions to copyright protection. The open-ended concept of fair use is not observed in Canadian law. In 1985, the Sub-Committee on the Revision of Copyright rejected replacing fair dealing with an open-ended system, and in 1986 the Canadian government agreed that "the present fair dealing provisions should not be replaced by the substantially wider ‘fair use’ concept".

CCH Canadian Ltd v Law Society of Upper Canada [2004] 1 S.C.R. 339, is the landmark Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 case that establishes the bounds of fair dealing
Fair dealing
Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, which is found in many of the common law jurisdictions of the Commonwealth of Nations....

 in Canadian copyright law
Canadian copyright law
The copyright law of Canada governs the legally enforceable rights to creative and artistic works under the laws of Canada. Canada passed its first colonial copyright statute in 1832 but was subject to imperial copyright law established by Britain until 1921...

. The Law Society of Upper Canada
Law Society of Upper Canada
The Law Society of Upper Canada is responsible for the self-regulation of lawyers and paralegals in the Canadian province of Ontario, Canada. Founded in 1797, it is known in French as "Le Barreau du Haut-Canada"...

 was sued for copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...

 for providing photocopy services to researchers. The Court unanimously held that the Law Society's practice fell within the bounds of fair dealing.

Israel


In November 2007, Israel passed a new Copyright Law that included a US style fair use exception. The law, which took effect in May 2008, permits the fair use of copyrighted works for purposes such as private study, research, criticism, review, news reporting, quotation, or instruction or testing by an educational institution. The law sets up four factors, similar to those of section 107 under American law, to determine whether a use is fair use.

See also "Fair use as a defense" above and the Fapl v Ploni decision.

Poland


Fair use exists in the Polish law and are covered by the Polish copyright law
Polish copyright law
Polish copyright law is regulated by the act from 1994.The first Polish copyright law act has been enacted in 1926...

 articles 23 to 35.

Compared to the United States, Polish fair use distinguishes between private and public use. In Poland, when the use is public, its use risks fines. The defendant must also prove that his use was private when accused that it was not, or that other mitigating circumstances apply. Finally, Polish law treats all cases in which private material was made public as a potential copyright infringement, where fair use cannot apply.

South Korea


The Korean Copyright Act newly amended in 2009, in articles 23~38 of section 4-2 (Limitation to the author's property rights), defines the exceptional use of copyrighted material without permission from copyright holders. However, a broad concept of fair use as in the above countries still does not exist in the Korean Copyright Act.

See also



  • Berne three-step test
    Berne three-step test
    The Berne three-step test is a clause that is included in several international treaties on intellectual property. It imposes on signatories to the treaties constraints on the possible limitations and exceptions to exclusive rights under national copyright laws.- Berne Convention :The three-step...

  • Defenses & Exceptions section of United States copyright law
    United States copyright law
    The copyright law of the United States governs the legally enforceable rights of creative and artistic works under the laws of the United States.Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution...

  • Copyfraud
    Copyfraud
    Copyfraud is a term used by Jason Mazzone, an Associate Professor of Law at Brooklyn Law School, to describe the use of false claims of copyright to attempt to control works not under one's legal control.-Introduction:Mazzone describes copyfraud as:...

  • Fair dealing
    Fair dealing
    Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, which is found in many of the common law jurisdictions of the Commonwealth of Nations....

    , a similar but more restrictive concept found in the United Kingdom and other Commonwealth nations (including Australia and Canada)
  • Fair use (US trademark law)
  • Fair Use Project
    Fair Use Project
    The Fair Use Project is part of the Stanford Center for Internet and Society at Stanford Law School. Founded in 2006, it offers legal assistance to "clarify, and extend, the boundaries of "fair use" in order to enhance creative freedom." It is headed by Tony Falzone, lecturer at Stanford Law. It...

  • Limitations and exceptions to copyright
    Limitations and exceptions to copyright
    Limitations and exceptions to copyright are provisions in copyright law which allow for copyrighted works to be used without a license from the copyright owner....

  • Electronic Frontier Foundation
    Electronic Frontier Foundation
    The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...

  • Right to quote
    Right to quote
    Right to quote is a legal concept in continental Europe, which some people consider similar to fair use. It allows for quoting excerpts of copyrighted works, as long as the cited paragraphs are within a reasonable limit , clearly marked as quotations and fully referenced, and if the resulting new...

  • Creative Commons
    Creative Commons
    Creative Commons is a non-profit organization headquartered in Mountain View, California, United States devoted to expanding the range of creative works available for others to build upon legally and to share. The organization has released several copyright-licenses known as Creative Commons...


External links