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Fair Use

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Fair Use

Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, parody, 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.

The term "fair use" originated in the United States.[1] A similar-sounding principle, fair dealing, exists in some other common law jurisdictions but in fact it is more similar in principle to the enumerated exceptions found under civil law systems. Civil law jurisdictions have other limitations and exceptions to copyright.

Fair use is one of the traditional safety valves intended to balance the public's interest in open access with the property interests of copyright holders.

Fair use under United States law

The legal concept of "test copyright" was first ratified by the United Kingdom of Great Britain's Statute of Anne 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 "Fairness Abridgement" in Gyles v Wilcox,[2] 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 until it was incorporated into the Copyright Act of 1976, 17 U.S.C. § 107.

The four factors of analysis for fair use set forth above derive from the opinion of [5] The court rejected the defendant's fair use defense with the following explanation:

[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy ... In short, we must often ... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.

Once these factors were codified as guidelines in 17 U.S.C. § 107, 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.

1. Purpose and character of the use

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, as opposed to merely derivative.

When Tom Forsythe appropriated Barbie dolls for his photography project "Food Chain Barbie" (depicting several copies of the doll naked and disheveled and about to be baked in an oven, blended in a food mixer, and the like), Mattel lost its claims of copyright and trademark infringement against him because his work effectively parodies Barbie and the values she represents.[6] In contrast, when Jeff Koons 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.[7]

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.[8] In 2006, Koons was involved in a similar case with commercial photographer Andrea Blanch,[9] 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 favorable 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 de-emphasized in some Circuits "since many, if not most, secondary uses seek at least some measure of commercial gain from their use".[10] 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.[11] See also L.A. Times v. Free Republic, described below.

2. Nature of the copyrighted work

Although the Supreme Court of the United States 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.[12]

To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright—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 of the assassination of President Kennedy, for example, was purchased and copyrighted by Time magazine. Yet its copyright was not upheld, in the name of the public interest, when Time tried to enjoin the reproduction of stills from the film in a history book on the subject in Time Inc v. Bernard Geis Associates.[13]

In the decisions of the Second Circuit in Salinger v. Random House[14] and in New Era Publications Int'l v. Henry Holt & Co,[15] the aspect of whether the copied work has been previously published was considered crucial, assuming the right of the original author to control the circumstances of the publication of his work or preference not to publish at all. However, U.S. federal judge Pierre N. Leval views 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.[16] 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."

3. Amount and 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. of America v. Universal City Studios, Inc. 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 Corporation, 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 v. Nation Enterprises,[17] the use of fewer than 400 words from President Ford'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.

Before 1991, sampling in certain genres of music was accepted practice and such copyright considerations as these were viewed as largely irrelevant. The strict decision against rapper Biz Markie's appropriation of a Gilbert O'Sullivan song in the case Grand Upright Music, Ltd. v. Warner Bros. Records Inc.[18] changed practices and opinions overnight. Samples now had to be licensed, as long as they rose "to a level of legally cognizable appropriation."[19] This left the door open for the de minimis doctrine, for short or unrecognizable samples; such uses would not rise to the level of copyright infringement, because under the de minimis doctrine, "the law does not care about trifles." However, 3 years later, the Sixth Circuit effectively eliminated the de minimis doctrine in the Bridgeport Music, Inc. v. Dimension Films case, holding that artists must "get a license or do not sample".[20] The Court later clarified that its opinion did not apply to fair use, but between Grand Upright and Bridgeport, practice had effectively shifted to eliminate unlicensed sampling.

4. 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 on the copyright owner, who must demonstrate the impact of the infringement on commercial use of the work. See Sony Corp v. Universal City Studios,[21] where the copyright owner, Universal, failed to provide any empirical evidence that the use of Betamax 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[22] 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 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.[23] Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licensing 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 licensing of course-pack copies.[24]

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.[25] Among the communities are documentarians, librarians, makers of Open Courseware, visual art educators, and communications professors.[26][27][28][29]

Such codes of best practices have permitted communities of practice to make more informed risk assessments in employing fair use in their daily practice.[30] For instance, documentarians must obtain errors and omissions insurance before most broadcasters and cablecasters will accept it. Before they created a code of best practices in 2005, no errors and omissions insurance routinely accepted fair use claims. Now, all such insurers in the U.S. accept fair use claims within the terms of their code.[31]

Practical effect of fair use defense

The practical effect of the fair use doctrine is that a number of conventional uses of copyrighted works are not considered infringing. For instance, quoting from a copyrighted work in order to criticize or comment upon it or teach students about it, is considered a fair use. 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, LLC, owner of the political website, was found liable for copyright infringement in L.A. 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."[32]

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 described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc.[22] This means that in litigation on copyright infringement, the defendant bears the burden of raising and proving that the 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" case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work borrowed only a small amount, 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.

Some copyright owners claim 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. Strategic lawsuit against public participation (SLAPP) cases such as these—alleging copyright infringement, patent infringement, defamation, or libel—often come into conflict with the defendant's right to freedom of speech, and has prompted some jurisdictions to pass anti-SLAPP legislation which raises the plaintiff's burdens and risk.

Although fair use ostensibly permits certain uses without liability, many content creators and publishers try to avoid a potential court battle by seeking a legally unnecessary license from copyright owners for any use of non-public domain material, even in situations where a fair use defense would likely succeed. The simple reason is that the license terms negotiated with the copyright owner may be much less expensive than defending against a copyright suit, or having the mere possibility of a lawsuit threaten the publication of a work in which a publisher has invested significant resources.

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."[33] "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 ("EFF"), the American Civil Liberties Union, the National Coalition Against Censorship, the American Library Association, 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 letters. Most recently, in 2006, Stanford University began an initiative called "The Fair Use Project" (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. Charles Nesson argued that file-sharing qualifies as fair use in his defense of alleged filesharer Joel Tenenbaum.[34] Kiwi Camara, defending alleged filesharer Jammie Thomas, announced a similar defense.[35]

On September 2, 2009 Israeli District court ruled out a detailed decision[36] not allowing disclosure of "John Doe"'s details for the request of the FA Premier League 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 Rights 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.

On 14 November 2013, Judge Denny Chin of the Court of Appeals for the Second Circuit ruled that Google Books mass digitisation of millions of books from research library collections is justified under the doctrine of fair use under U.S. copyright law.[37]

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.[38] On September 12, 2007, the Computer and Communications Industry Association (CCIA),[38] a group representing companies including [38] 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.[38] "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.[38] "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 unlicensed manner."[38]

Fair use in particular areas

Fair use and text and data mining

The transformative nature of computer based analytical processes such as text mining, web mining and data mining has led many to form the view that such uses would be protected under fair use. This view was substantiated by the rulings of Judge Chin as part of the Google Book Settlement. As part of the ruling that found in favour of the book digitisation project being allowable under fair use, the judge stated "Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas".[41]

Text and data mining was also subject to further fair use rulings in the Authors Guild v. HathiTrust case, where the Authors Guild claimed that their copyright was being infringed by the HathiTrust Digital Library and its members. Judge Baer, in making the case that the uses made by the library were transformative under fair use stated that 'the search capabilities of the HDL have already given rise to new methods of academic inquiry such as text mining."[42][43]

Fair use and parody

Producers or creators of parodies 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 satires (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[22] the Supreme Court recognized parody as a potential fair use, even when done for profit. Roy Orbison's publisher, Acuff-Rose Music Inc, had sued 2 Live Crew in 1989 for their use of Orbison's "Oh, Pretty Woman" 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, 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 that a parody may be a protected fair use, including 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 thumbnails, inline linking and fair use. In the lower District Court case on a motion for summary judgment, 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. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation, 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. First, 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. Second, the photographs had already been published diminishing the significance of their nature as creative works. Third, 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. Last, 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 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 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, who made a home video of her thirteen-month-old son dancing to Prince's song Let's Go Crazy and posted the video on YouTube. 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. 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. 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.[44] For more information, see Lenz v. Universal Music Corp.

Fair use and reverse engineering

There's a substantial body of legislation regarding Fair Use law in application to Reverse Engineering of computer software, hardware, network protocols, encryption and access control systems. See Wikibooks[45] or EFF FAQ[46] on the topic.

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.[18]
  • 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 establishes that it is legal, using certain technologies, to make copies of audio recordings for non-commercial personal use.[47]
  • It's copyrighted, so it can't be fair use. On the contrary, fair use applies only to copyrighted works, defining some types of uses of those works as non-infringing; in effect, it limits copyright's scope and describes 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.
  • 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 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 L.A. 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[48] 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 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.[49]
  • 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.[50]
  • 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., it was ruled that commercial parody may be fair use. Hip-hop group 2 Live Crew successfully made a parody, sold for profit, of the song "Oh, Pretty Woman".

Influence internationally

Sources differ on whether fair use is fully recognized by countries other than the United States. [51] However, Paul Gellar's 1999 International Copyright Law and Practice says that while some other countries recognize similar exceptions to copyright, only the United States and Israel fully recognize the concept of fair use.[52]

While influential in some quarters, other countries often have drastically different fair use criteria to the U.S., 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 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.[53]

Fair dealing

Fair dealing allows specific exceptions to copyright protections. The open-ended concept of fair use is generally not observed in jurisdictions where fair dealing is in place, although this does vary.[51] Fair dealing is established in legislation in Australia, Canada, New Zealand, Singapore, India, South Africa and the United Kingdom, among others.[51]


The Copyright Act establishes fair dealing 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".[54]

CCH Canadian Ltd v. Law Society of Upper Canada [2004] 1 S.C.R. 339, is the landmark Supreme Court of Canada case that establishes the bounds of fair dealing in Canadian copyright law. The Law Society of Upper Canada was sued for copyright infringement for providing photocopy services to researchers. The Court unanimously held that the Law Society's practice fell within the bounds of fair dealing.


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.[55] 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.[36][56]


Fair use exists in the Polish law and is covered by the Polish copyright law 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 as amended in 2011, 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. A broad concept of fair use as in the above countries was stipulated in article 35-3 since 2011.

United Kingdom

Fair Use Week

"Fair Use Week" is an international event that celebrates the important doctrines of fair use in the United States (and fair dealing in Canada and other jurisdictions). Fair Use Week was first proposed on a Fair Use Allies listserv, which was an outgrowth of the Library Code of Best Practices Capstone Event, celebrating the development and promulgation of ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries. While the idea was not taken up nationally, Kyle K. Courtney, Copyright Advisor at Harvard University, launched the first ever Fair Use Week at Harvard University in February 2014, with a full week of activities celebrating fair use. The first Fair Use Week included blog posts from national and international fair use experts, live fair use panels, fair use workshops, and Fair Use Stories Tumblr blog, where people from the world of art, music, film, and academia shared stories about the importance of fair use to their community. The first Fair Use Week was so successful, that in 2015 ARL helped organize the 2nd Annual Fair Use Week, with participation from many more institutions, and launched the official Fair Use Week website,

See also



  1. ^ Folsom v. Marsh, 9 F. Cas. 342, No. 4,901 (C.C.D. Mass. 1841)
  2. ^ Gyles v Wilcox, Barrow, and Nutt, 3 Atk 143;26 ER 489 (Court of Chancery (England) 1740).
  3. ^
  4. ^ Folsom v. Marsh, 9 F. Cas. 342, No. 4,901 (C.C.D. Mass. 1841).
  5. ^
  6. ^ Mattel Inc v. Walking Mountain Productions, No. 01-56695 (9th Cir. Dec 29, 2003). Text
  7. ^ Art ROGERS v. Jeff KOONS; Sonnabend Gallery, Inc., 960 F.2d 301 (2d Cir. Apr 2, 1992).
  8. ^
  9. ^ Andrea BLANCH v. Jeff KOONS, the Solomon R. Guggenheim Foundation, and Deutsche Bank AG, No. 05-6433 (2d Cir. Oct 26, 2006). Text
  10. ^ American Geophysical Union, 60 F.3d at 921
  11. ^ see the 1914 case, Macmillan Co. v. King, although this case has only limited application since it was decided many years before the modern fair use provision became a part of the legislation
  12. ^ Warner Bros. and J. K. Rowling v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008)
  13. ^ 293 F. Supp. 130 (S.D.N.Y. 1968)
  14. ^ Salinger v. Random House Inc, 650 F. Supp. 413 (S.D.N.Y. 1986)
  15. ^ New Era Publications Int'l v. Henry Holt & Co, 695 F. Supp. 1493 (S.D.N.Y. 1988)
  16. ^ Pierre N. Leval, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1105 (1990)
  17. ^ Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)
  18. ^ a b Grand Upright Music, Ltd. v. Warner Bros. Records Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)
  19. ^ Bridgeport Music, Inc. v. Dimension Films, 230 F. Supp.2d at 841 [1]
  20. ^ Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390, 398 (6th Cir. 2004).
  21. ^ Sony Corp v. Universal City Studios, 464 US 417, 451 (1984)
  22. ^ a b c Campbell v. Acuff-Rose Music Inc, 510 U.S. 569 (1994)
  23. ^ Video Pipeline v. Buena Vista, 342 F.3d 191 (3d Cir. 2003)
  24. ^ Princeton Univ Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir. 1999)
  25. ^ Madison, Michael. 2004. A Pattern-oriented Approach to Fair Use. William and Mary Law Review 45:1525f.
  26. ^
  27. ^
  28. ^
  29. ^ [2] Archived December 2, 2013 at the Wayback Machine
  30. ^
  31. ^ Aufderheide, P. and Jaszi, P. 2011. Reclaiming Fair Use: How to Put Balance Back in Copyright. Oxford University Press.
  32. ^ LOS ANGELES TIMES v. FREE REPUBLIC, 2000 U.S. Dist. LEXIS 5669
  33. ^ Donna Wentworth, "The Key to a Good (Fair Use) Defense", EFF, Oct. 27, 2004. Retrieved on Jan. 18, 2014. ("Fair use is generally understood as an affirmative defense." quoting Fred Von Lohmann)
  34. ^
  35. ^
  36. ^ a b [3] FAPL v. Ploni
  37. ^
  38. ^ a b c d e f g
  39. ^
  40. ^
  41. ^
  42. ^
  43. ^
  44. ^
  45. ^ Wikibooks:Reverse Engineering/Legal Aspects
  46. ^
  47. ^ See USC 17.10.1008, amended by the Audio Home Recording Act.
  48. ^ Copyright Office Basics
  49. ^ Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985).
  50. ^ Wall Data v. Los Angeles County Sheriff's Dept (9th Cir. May 17, 2006) (PDF at Ninth Circuit).
  51. ^ a b c
  52. ^
  53. ^
  54. ^ Why Canada Should Not Adopt Fair Use: A Joint Submission to the Copyright Consultations[4]
  55. ^ [5] The Jerusalem Post Retrieved on 05-5-08
  56. ^ [6] FAPL v. Ploni Israeli fair use discussion

Further reading

  • United States. Congress. House of Representatives (2014). The Scope of Fair Use: Hearing Before the Subcommittee on Courts, Intellectual Property, and the Internet of the Committee on the Judiciary, House of Representatives, One Hundred Thirteenth Congress, Second Session, January 28, 2014.

External links

  • U.S. Copyright Office Fair Use Index, a searchable database of notable fair use cases in U.S. federal courts
  • The Fair Use/Fair Dealing Handbook, a compilation of national statutes that explicitly refer to fair use or fair dealing
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