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Encyclopedia > Fair use
Intellectual property law
Primary rights
Sui generis rights
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For fair use on Wikipedia, see Wikipedia:Fair use. For fair use in trademark law, see Fair use (US trademark law).

Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. It is based on free speech rights provided by the First Amendment to the United States Constitution. The term "fair use" is unique to the United States; a similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright. Image File history File links This is a lossless scalable vector image. ... For the 2006 film, see Intellectual Property (film). ... Not to be confused with copywriting. ... For other uses, see Patent (disambiguation). ... “(TM)” redirects here. ... Industrial design rights are intellectual property rights that protect the visual design of objects that are not purely utilitarian. ... A utility model is an intellectual property right to protect inventions. ... A geographical indication (sometimes abbreviated to GI) is a name or sign used on certain products or which corresponds to a specific geographical location or origin (eg. ... A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information used by a business to obtain an advantage over competitors within the same industry or profession. ... Related rights is a term in copyright law, used in opposition to the term authors rights. The term neighbouring rights is exactly equivalent, and a more literal translation of the original French droits voisins. ... A trade name, also known as a trading name or a business name, is the legal name of a business, or the name which a business trades under for commercial purposes. ... The term domain name has multiple related meanings: A name that identifies a computer or computers on the internet. ... Sui generis is a (post) Latin expression, literally meaning a scholar like what pradeep is or unique in its characteristics. ... Database rights are a form of exclusive right introduced by European Union Law to those countries which follow EU Law in 1996. ... A mask work is a two or three-dimensional layout of an integrated circuit (IC), i. ... Plant breeders rights, also known as plant variety rights (PVR), are intellectual property rights granted to the breeder of a new variety of plant. ... In European Union member countries, a supplementary protection certificate (SPC) is a sui generis, patent-like, intellectual property right. ... Traditional knowledge (TK), indigenous knowledge (IK), and local knowledge generally refer to the matured long-standing traditions and practices of certain regional, indigenous, or local communities. ... In the United States, trademark law includes a fair use defense, sometimes called trademark fair use to distinguish it from the better-known fair use doctrine in copyright. ... United States copyright law governs the legally enforceable rights of creative and artistic works in the United States. ... To meet Wikipedias quality standards, this article or section may require cleanup. ... This article is about the general concept. ... “First Amendment” redirects here. ... Fair dealing is a doctrine of limitations and exceptions to copyright which is found in many of the common law jurisdictions of the Commonwealth of Nations. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... For other uses of civil law, see civil law. ... The expression limitations and exceptions to copyright refers to situations in which the exclusive rights granted to authors (or their asignees) under copyright law do not apply. ...


United States trademark law also incorporates a "fair use" defense. While the names are the same, the doctrines are quite different. Trademarks were traditionally protected in the United States only under State common law, growing out of the tort of unfair competition. ...

Contents

Fair use under United States law

The legal concept of "copyright" was first ratified by the United Kingdom'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 gradually created a doctrine of "fair abridgment," which later became "fair use," that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. § 107, reprinted here: The Statute of Anne (short title Copyright Act 1709 8 Anne c. ... // Events January 12 - Two-month freezing period begins in France - The coast of the Atlantic and Seine River freeze, crops fail and at least 24. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... The Copyright Act of 1976 is a landmark statute in United States copyright legislation and remains the primary basis of copyright law in the United States. ... Title 17 of the United States Code outlines the role of copyrights in the United States Code. ...

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.
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.[1]

The four factors of analysis for fair use set forth above derive from the classic opinion of Joseph Story 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 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: American jurist Joseph Story Joseph Story (September 18, 1779 - September 10, 1845), American jurist, was born at Marblehead, Massachusetts. ... // The United States Reports, the official reporter of the Supreme Court of the United States Case citation is the system used in common law countries such as the United States, England and Wales, Ireland, Canada, New Zealand, Hong Kong, Australia and India to uniquely identify the location of past court... 1841 is a common year starting on Friday (link will take you to calendar). ... George Washington (February 22, 1732 – December 14, 1799)[1] led Americas Continental Army to victory over Britain in the American Revolutionary War (1775–1783), and in 1789 was elected the first President of the United States of America. ...

[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 USC § 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.


Fair use tempers copyright's exclusive rights to serve the purpose of copyright law, which the U.S. Constitution defines as the promotion of "the Progress of Science and useful Arts" (I.1.8). Some commentators have also suggested that the First Amendment's protection of free speech necessitates some form of fair use defense, because some things simply cannot be said without some amount of copying.[citation needed] 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 doctrine. Wikisource has original text related to this article: The United States Constitution The United States Constitution is the supreme law of the United States of America. ... “First Amendment” redirects here. ... Freedom of speech is the right to freely say what one pleases, as well as the related right to hear what others have stated. ... In copyright law the principle that certain elements of a work are not protected when they are mandated by, or customary to, the genre. ...


Purpose and character

The first factor is about 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, say, 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. In United States copyright law, transformation is a possible justification that use of a copyrighted work may qualify as fair use, i. ... This montage of different images is an example of a derivative work In copyright law, a derivative work is an artistic creation that includes major, basic copyrighted aspects of an original, previously created first work. ...


When Tom Forsythe appropriated Barbie dolls for his photography project "Food Chain Barbie," Mattel lost its claims of copyright and trademark infringement against him because his work effectively parodies Barbie and the values she represents (cf. the 2003 9th Circuit case Mattel Inc. v. Walking Mountain Productions). But 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.[2] Information Occupation See: Barbies careers Family See: List of Barbies friends and family Created by Ruth Handler Barbie is a best-selling fashion doll launched in 1959. ... Mattel Inc. ... In contemporary usage, a parody (or lampoon) is a work that imitates another work in order to ridicule, ironically comment on, or poke some affectionate fun at the work itself, the subject of the work, the author or fictional voice of the parody, or another subject. ... Jeff Koons (born January 21, 1955), is an American artist. ...


However, this court case occurred before the new standard for the courts was in place, that is, before the concept of transformative use as described by the Hon. Judge Pierre N. Leval was in play. More recently, Koons was involved a similar case with commercial photographer Andrea Blanch,[3] 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. Pierre Leval is a judge on the United States Court of Appeals for the Second Circuit. ...


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."[4] 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.[5]


Nature of the copied 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. Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries  Atlas  Politics Portal      The Supreme Court of the United States (sometimes colloquially referred to by the acronym...


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 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.[6] In intellectual property law, the idea-expression divide is the principle which states that the function of the law is to protect the fixed expression or manifestation of an idea, rather than the fundamental concept or information which gives rise to the idea. ... Frame 150 from the Zapruder Film The Zapruder film is a silent, 8 mm color home movie, shot by a private citizen named Abraham Zapruder, of the presidential motorcade of John F. Kennedy through Dealey Plaza in Dallas, Texas, on November 22, 1963. ... President Kennedy, with his wife, Jackie, and Texas Gov. ...


Following the decisions of the Second Circuit in Salinger v. Random House, Inc.[7] and in New Era Publications Int'l v. Henry Holt & Co.,[8] 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 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, e.g., 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. 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, Publishers, Inc. v. Nation Enters,[9] the use of less 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. Holding Manufacturers of home video recording machines could not be liable for contributory copyright infringement for the potential uses by its purchasers, because the devices were sold for legitimate purposes and had substantial non-infringing uses. ... Kelly v. ... The U.S. Court of Appeals for the Ninth Circuit is a federal court with appellate jurisdiction over the following United States district courts: District of Alaska District of Arizona Central, Eastern, Northern, and Southern Districts of California District of Guam District of Hawaii District of Idaho District of Montana... Harper & Row v. ... For other persons named Gerald Ford, see Gerald Ford (disambiguation). ...


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 v. Warner[10] changed practices and opinions overnight. Samples now had to be licensed, as long as they rose "to a level of legally cognizable appropriation."[11] In other words, de minimis 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. Year 1991 (MCMXCI) was a common year starting on Tuesday (link will display the 1991 Gregorian calendar). ... To meet Wikipedias quality standards, this article may require cleanup. ... Hip hop music is a style of music which came into existence in the United States during the mid-1970s, and became a large part of modern pop culture during the 1980s. ... Biz Markie (born Marcel Hall April 8, 1964 in Harlem, New York) is a rapper and DJ, best known for humorous singles such as Just a Friend. He has been labeled The Clown Prince of Hip-Hop. ... Gilbert OSullivan Raymond Edward OSullivan, known professionally as Gilbert OSullivan (born 1 December 1946, Waterford, County Waterford, Ireland) is an Irish singer-songwriter, best known for his early 1970s hits Alone Again (Naturally), Clair and Get Down. // Early in his life, his family moved to Swindon, Wiltshire... Presiding judge Kevin Thomas Duffy Holding That the Defendants had tried to secure a license from plaintiff prior to sampling its copyrighted song helped establish that their copyright infringement was knowing and intentional and that plaintiff was the valid copyright holder. ... De minimis is a Latin expression meaning about minimal things, which is used mostly as part of de minimis non curat praetor or de minimis non curat lex, in the sense that the law is not interested in trivial matters. ... This article, image, template or category should belong in one or more categories. ...


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 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 defendant for commercial uses, but on the copyright owner for noncommercial uses. See Sony Corp. v. Universal City Studios,[12] 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.[13] 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. Sony Corp v. ... This article is about the American media conglomerate. ... Sonys Betamax is the 12. ... Presiding judge Justice Souter delivered the opinion of the Court. ...


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 words of the Supreme Court in Acuff-Rose Music, "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.[14] On the other hand, one might well question whether Roland Barthes' S/Z clearly supersedes Honoré de Balzac's short story "Sarrasine" as a market replacement, since it reproduces the entirety of the latter, though only in short fragments followed by much critical explication by Barthes. 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-packs for college students, when a market already existed for the licensing of course-pack copies.[15] Roland Barthes Roland Barthes (November 12, 1915 – March 25, 1980) (pronounced ) was a French literary critic, literary and social theorist, philosopher, and semiotician. ... “Balzac” redirects here. ...


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.


Documentary filmmakers organized and created the Documentary Filmmakers' Statement of Best Practices in Fair Use [2], which has had a dramatic effect on fair use practice in documentary film. Since the release of the Statement in 2005, PBS, ITVS and IFC use it. Furthermore, four out of seven of the national errors and omissions insurers now issue fair use coverage routinely. Several documentary films have also used it, allowing both theatrical and television releases. Other professional communities are beginning to plan their own best practices standards in fair use as well.


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, LLC, owner of the political website freerepublic.com, 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." Free Republic is a for-profit, non-tax exempt [1] moderated Internet forum, activist and chat site for conservatives, primarily within the United States. ... In 1998, the Los Angeles Times and the Washington Post newspapers sued the Free Republic internet forum and its owner Jim Robinson for federal copyright infringement. ...


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 favor 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 didn't 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..[13] 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" 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. Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries  Atlas  Politics Portal      The Supreme Court of the United States (sometimes colloquially referred to by the acronym... An affirmative defense is a defense used in litigation between private parties in common law jurisdictions. ... Presiding judge Justice Souter delivered the opinion of the Court. ... A lawsuit is a civil action brought before a court in order to recover a right, obtain damages for an injury, obtain an injunction to prevent an injury, or obtain a declaratory judgment to prevent future legal disputes. ... In the common law, burden of proof is the obligation to prove allegations which are presented in a legal action. ... De minimis is a Latin expression meaning about minimal things, which is used mostly as part of de minimis non curat praetor or de minimis non curat lex, in the sense that the law is not interested in trivial matters. ...


Because of 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 frivolous lawsuit is part of a much larger problem in First Amendment law; see Strategic lawsuit against public participation. The first ten Amendments to the U.S. Constitution make up the Bill of Rights. ... A Strategic Lawsuit Against Public Participation (SLAPP) is a form of litigation filed by a large organization or in some cases an individual plaintiff, to intimidate and silence a less powerful critic by so severely burdening them with the cost of a legal defense that they abandon their criticism. ...


Because 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 license even for uses that copyright law ostensibly permits without liability.


The frequent argument over whether fair use is a "right" or a "defense"[16] is generated by confusion over the use of the term "affirmative defense." An 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." The First Amendment, for instance, is generally raised as an affirmative defense in litigation, but is clearly a "right." Similarly, while fair use is characterized as a defense in terms of the litigation posture, Section 107 defines fair use as a "limitation" on copyright law and states clearly that "the fair use of a copyrighted work ... is not an infringement of copyright." In jurisprudence and law, a right is the legal or moral entitlement to do or refrain from doing something or to obtain or refrain from obtaining an action, thing or recognition in civil society. ... Jargon redirects here. ...


In 2006, Stanford University began an initiative called "The Fair Use Project" (FUP) to help artists fight lawsuits brought against them by large corporations. The FUP has assisted several filmmakers who have received "cease and desist" letters.


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. The fair use cases addressing parodies 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 contemporary usage, a parody (or lampoon) is a work that imitates another work in order to ridicule, ironically comment on, or poke some affectionate fun at the work itself, the subject of the work, the author or fictional voice of the parody, or another subject. ...


In Campbell v. Acuff-Rose Music, Inc.[13] the Supreme Court recognized parody as a 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. Presiding judge Justice Souter delivered the opinion of the Court. ... Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries  Atlas  Politics Portal      The Supreme Court of the United States (sometimes colloquially referred to by the acronym... Roy Kelton Orbison (April 23, 1936 – December 6, 1988), nicknamed The Big O, was an influential American singer-songwriter, guitarist and a pioneer of rock and roll whose recording career spanned more than four decades. ... Acuff-Rose Music was a Nashville, Tennessee music publishing firm. ... 2 Live Crew is a rap group. ... Year 1989 (MCMLXXXIX) was a common year starting on Sunday (link displays 1989 Gregorian calendar). ... Oh, Pretty Woman is a song which was a worldwide hit for Roy Orbison. ... 1867 edition of the satirical magazine Punch, a British satirical magazine, ground-breaking on popular literature satire. ...


In a more recent parody case, Suntrust v. Houghton Mifflin, a suit was brought unsuccessfully against the publication of The Wind Done Gone, which reused many of the characters and situations from Gone with the Wind, but told the events from the point of view of the slaves rather than the slaveholders. The Eleventh Circuit, applying Campbell, recognized that The Wind Done Gone was a protected parody, and vacated the district court's injunction against its publication. Suntrust v. ... The Wind Done Gone is the first novel written by Alice Randall. ... For the film, see Gone with the Wind (film). ... 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 Northern District of Alabama Southern District of Alabama Middle District of Florida Northern District of Florida Southern District of Florida Middle... The U.S. District Court for the Northern District of Georgia serves the residents of forty-six counties. ...


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. Kelly v. ... The ThumbsPlus image file manager showing folder tree in the upper left and 12 thumbnail-size images to the right. ... This article or section does not cite its references or sources. ... Summary judgment is a legal term which means that a court has made a determination (a judgment) without a full trial. ... This article is about search engines. ... EFF Logo The Electronic Frontier Foundation (EFF) is a non-profit advocacy and legal organization based in the United States with the stated purpose of being dedicated to preserving free speech rights such as those protected by the First Amendment to the United States Constitution in the context of today...


On appeal, the 9th Circuit Court of Appeals found in favor 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 fact that the photographs had already been published diminished 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. 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 after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement. is the 188th day of the year (189th in leap years) in the Gregorian calendar. ... Year 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ...


Common misunderstandings

Because of the deliberate ambiguity of fair use, it is commonly misunderstood. 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, once made, are static forever. 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 point in 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 establishes that it is legal in some circumstances to make copies of audio recordings for noncommercial personal use.
  • It's copyrighted, so it can't be fair use. Fair use describes conditions under which copyrighted material may be used without permission. If a work is not copyrighted, it's in the public domain and fair use does not come into play, since public-domain works can legally be used for any purpose.
    • Note: In some countries, 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 and copyright violation are related matters—-both can, at times, involve failure to properly credit sources—-they are not identical. Copyright law protects exact expression, not ideas: for example, a distant paraphrase that lays out the same argument as a copyrighted essay is in little danger of being deemed a copyright violation, but it could still be plagiarism. On the other hand, one can plagiarize even a work that is not protected by copyright, such as trying to pass off a line from Shakespeare as your own. Plagiarism—using someone's words, ideas images, etc. without acknowledgment—is a matter of professional ethics. Copyright is a matter of law. Citing sources generally prevents accusations of plagiarism, but is not a sufficient defense against copyright violations (otherwise, anyone could legally reprint an entire copyrighted book just by citing who wrote it).
  • Noncommercial use is invariably fair. Not true, though a judge may take the profit motive or lack thereof into account.
  • Strict adherence to fair use protects you from being sued. Fair use is a 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. This means that fair use is not really a deterrent to SLAPP.
  • 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[17] 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 U.S. 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 U.S. 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.[18]
  • 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.[19] However, binding agreements such as contracts or license agreements may take precedence over fair use rights.[20]
  • 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 doesn't make it impossible. 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 doesn't make it impossible. For instance, in the 2 Live Crew—Oh, Pretty Woman case, it was ruled that commercial parody can be fair use.

The Audio Home Recording Act of 1992 (AHRA) amended the United States copyright law by adding chapter 10 Digital Audio Recording Devices and Media. ... For other uses, see Plagiarism (disambiguation). ... Strategic lawsuits against public participation, (SLAPP) refers to litigation filed by a large corporation (or in some cases, a wealthy individual) to silence a less powerful critic by so severely burdening them with the cost of a legal defense that they abandon their criticism. ... is the 60th day of the year (61st in leap years) in the Gregorian calendar. ... Year 1989 (MCMLXXXIX) was a common year starting on Sunday (link displays 1989 Gregorian calendar). ... is the 1st day of the year in the Gregorian calendar. ... Year 1923 (MCMXXIII) was a common year starting on Monday (link will display the full calendar) of the Gregorian calendar. ... is the 60th day of the year (61st in leap years) in the Gregorian calendar. ... Year 1989 (MCMLXXXIX) was a common year starting on Sunday (link displays 1989 Gregorian calendar). ... is the 1st day of the year in the Gregorian calendar. ... Year 1978 (MCMLXXVIII) was a common year starting on Sunday (link displays the 1978 Gregorian calendar). ... is the 60th day of the year (61st in leap years) in the Gregorian calendar. ... Year 1989 (MCMLXXXIX) was a common year starting on Sunday (link displays 1989 Gregorian calendar). ... Roland Corporation ) TYO: 7944 is a Japanese manufacturer of electronic musical instruments, electronic equipment and software. ... The Roland MT-32 is a MIDI synthesizer module first released in 1987 by the Roland Corporation. ... Sony Corp v. ... Presiding judge Justice Souter delivered the opinion of the Court. ...

Influence

The US fair use doctrine has influenced the development of such exemptions in other jurisdictions.[citation needed] For instance, Philippine copyright law has a fair use doctrine based largely, or even exactly, on the doctrine adopted in the United States. Philippine copyright law is enshirined in the Intellectual Property Code of the Philippines, officially known as Republic Act No. ...


International Situation

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.


United Kingdom

For example, the UK does not officially allow the ripping of audio CDs to the owner's own MP3 player. While this is unlikely to be cause for a lawsuit, there is no "fair use" defense available should one arise.


The UK does have some specific exemptions for specific purpose, for example the right of the Royal National Institute for the Blind to convert written text to spoken word for use by blind and visually impaired people. The Royal National Institute for the Blind (RNIB) is a United Kingdom charity, which was set up to lobby for and help people who are blind or partially sighted. ...


Also note that UK-originated content is inherently under copyright unless it carries an explicit statement that it has been passed to the Public Domain.


See also

The Berne three-step test is a set of constraints on the limitations and exceptions to exclusive rights under national copyright laws. ... United States copyright law governs the legally enforceable rights of creative and artistic works in the United States. ... Copyfraud is a term used to describe the misuse of false claims of copyright. ... Fair dealing is a doctrine of limitations and exceptions to copyright which is found in many of the common law jurisdictions of the Commonwealth of Nations. ... In the United States, trademark law includes a fair use defense, sometimes called trademark fair use to distinguish it from the better-known fair use doctrine in copyright. ... The legal aspects of technology involve many different terms. ... The expression limitations and exceptions to copyright refers to situations in which the exclusive rights granted to authors (or their asignees) under copyright law do not apply. ...

References

  1. ^ http://www4.law.cornell.edu/uscode/17/107.html
  2. ^ Art Rogers v. Jeff Koons, 960 F.2d 301
  3. ^ Blanch v. Koons, No. 05-6433, 2nd Circuit, October 26, 2006: http://caselaw.lp.findlaw.com/data2/circs/2nd/056433p.pdf
  4. ^ American Geophysical Union, 60 F.3d at 921
  5. ^ 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
  6. ^ Time Inc. v. Bernard Geis Associates, 293 F. Supp. 130
  7. ^ Salinger v. Random House, Inc., 650 F. Supp. 413 (S.D.N.Y. 1986)
  8. ^ New Era Publications Int'l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988)
  9. ^ Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985)
  10. ^ Grand Upright v. Warner, 780 F. Supp. 182 (S.D.N.Y. 1991)
  11. ^ Bridgeport Music Inc. v. Dimension Films, 230 F. Supp.2d at 841 [1]
  12. ^ Sony Corp. v. Universal City Studios, 464 U.S. 417, 451 (1984)
  13. ^ a b c Campbell v. Acuff-Rose Music, Inc., 510 U.S. 578 (1994)
  14. ^ Video Pipeline v. Buena Vista, 342 F.3d 191 (3d Cir. 2003)
  15. ^ Princeton Univ. Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir. 1999)
  16. ^ http://www.eff.org/IP/eff_fair_use_faq.php Eff.org Retrieved on 05-21-07
  17. ^ http://www.copyright.gov/circs/circ1.html#pub
  18. ^ Harper & Row, Publishers, Inc. v. Nation Enterprises, 105 S.Ct. 2218 (1985)
  19. ^ http://www.volokh.com/posts/1161634828.shtml
  20. ^ http://www.ca9.uscourts.gov/ca9/newopinions.nsf/B4EF4058496AF3AB88257170007CD791/$file/0356559.pdf

Rogers v. ... // The United States Reports, the official reporter of the Supreme Court of the United States Case citation is the system used in common law countries such as the United States, England and Wales, Ireland, Canada, New Zealand, Hong Kong, Australia and India to uniquely identify the location of past court... Macmillan Co. ... // The United States Reports, the official reporter of the Supreme Court of the United States Case citation is the system used in common law countries such as the United States, England and Wales, Ireland, Canada, New Zealand, Hong Kong, Australia and India to uniquely identify the location of past court... // The United States Reports, the official reporter of the Supreme Court of the United States Case citation is the system used in common law countries such as the United States, England and Wales, Ireland, Canada, New Zealand, Hong Kong, Australia and India to uniquely identify the location of past court... The United States District Court for the Southern District of New York (SDNY) is the Federal district court whose jurisdiction is comprised of the following counties: New York, Bronx, Westchester, Putnam, Rockland, Orange, Dutchess, and Sullivan. ... Year 1986 (MCMLXXXVI) was a common year starting on Wednesday (link displays 1986 Gregorian calendar). ... // The United States Reports, the official reporter of the Supreme Court of the United States Case citation is the system used in common law countries such as the United States, England and Wales, Ireland, Canada, New Zealand, Hong Kong, Australia and India to uniquely identify the location of past court... The United States District Court for the Southern District of New York (SDNY) is the Federal district court whose jurisdiction is comprised of the following counties: New York, Bronx, Westchester, Putnam, Rockland, Orange, Dutchess, and Sullivan. ... Year 1988 (MCMLXXXVIII) was a leap year starting on Friday (link displays 1988 Gregorian calendar). ... Harper & Row v. ... This article is about the year. ... Presiding judge Kevin Thomas Duffy Holding That the Defendants had tried to secure a license from plaintiff prior to sampling its copyrighted song helped establish that their copyright infringement was knowing and intentional and that plaintiff was the valid copyright holder. ... // The United States Reports, the official reporter of the Supreme Court of the United States Case citation is the system used in common law countries such as the United States, England and Wales, Ireland, Canada, New Zealand, Hong Kong, Australia and India to uniquely identify the location of past court... The United States District Court for the Southern District of New York (SDNY) is the Federal district court whose jurisdiction is comprised of the following counties: New York, Bronx, Westchester, Putnam, Rockland, Orange, Dutchess, and Sullivan. ... This article, image, template or category should belong in one or more categories. ... // The United States Reports, the official reporter of the Supreme Court of the United States Case citation is the system used in common law countries such as the United States, England and Wales, Ireland, Canada, New Zealand, Hong Kong, Australia and India to uniquely identify the location of past court... Sony Corp v. ... // The United States Reports, the official reporter of the Supreme Court of the United States Case citation is the system used in common law countries such as the United States, England and Wales, Ireland, Canada, New Zealand, Hong Kong, Australia and India to uniquely identify the location of past court... This article is about the year. ... Presiding judge Justice Souter delivered the opinion of the Court. ... Year 1994 (MCMXCIV) was a common year starting on Saturday (link will display full 1994 Gregorian calendar). ... // The United States Reports, the official reporter of the Supreme Court of the United States Case citation is the system used in common law countries such as the United States, England and Wales, Ireland, Canada, New Zealand, Hong Kong, Australia and India to uniquely identify the location of past court... The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the following United States District Courts: District of Delaware District of New Jersey Western, Middle, and Eastern Districts of Pennsylvania District of the United States Virgin Islands The court is based at... Year 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ... // The United States Reports, the official reporter of the Supreme Court of the United States Case citation is the system used in common law countries such as the United States, England and Wales, Ireland, Canada, New Zealand, Hong Kong, Australia and India to uniquely identify the location of past court... The United States Court of Appeals for the Sixth Circuit is a federal court with appellate jurisdiction over the following United States District Courts: Western and Eastern Districts of Kentucky Western and Eastern Districts of Michigan Northern and Southern Districts of Ohio Western, Middle, and Eastern Districts of Tennessee The...

External links and sources

Statute & case law resources

Resources to learn about fair use:

Significant meetings and conferences on fair use: Sut Jhally, discussing Tough Guise: Men, Violence and the Crisis in Masculinity at the Mens Project Collaborative, Amherst College in March 2004 Sut Jhally (born 29 May 1955) is a professor of Communication at the University of Massachusetts Amherst, regarded as one of the world’s leading cultural studies... “PDF” redirects here. ... “PDF” redirects here. ...


  Results from FactBites:
 
Fair use - Wikipedia, the free encyclopedia (3809 words)
Fair use tempers copyright's exclusive rights to serve the purpose of copyright law, which the U.S. Constitution defines as the promotion of "the Progress of Science and useful Arts" (I.1.8).
On appeal, the 9th Circuit Court of Appeals 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.
Because of the deliberate ambiguity of fair use, it is commonly misunderstood.
Wikipedia:Fair use - Wikipedia, the free encyclopedia (3745 words)
In general, the use of copyrighted work without the permission of the copyright holder is copyright infringement, and is illegal.
The less of the original that is used in relation to the whole the more likely that use is fair, though the importance of the specific portion is also considered (as the quoting the most important part may attempt to "supersede" the original).
If the image is used in more than one article, it is preferable that individual articles are assessed individually with a separate template box used for each article reviewed, as future edits to a particular article may render fair use claims as void.
  More results at FactBites »

 
 

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