Fair Use

“[Fair use is the] privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner …”
— Rosemont Enterprises, Inc. v. Random House, Inc., 1967

“The test for infringement of a copyright is of necessity vague. … Obviously, no principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed its ‘expression.’ Decisions must therefore inevitably be ad hoc.”
Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F. 2d 487 - Court of Appeals, 2nd Circuit 1960

Fair Use

Practical Tips for Avoiding Copyright Liability
While there is no definitive test for determining whether your use of another’s copyrighted work is a fair use, there are several things you can do to minimize your risk of copyright liability:

  • Use only as much of the copyrighted work as is necessary to accomplish your purpose or convey your message;
  • Use the work in such a way that it is clear that your purpose is commentary, news reporting, or criticism;
  • Add something new or beneficial (don’t just copy it — improve it!);
  • If your source is nonfiction, limit your copying to the facts and data; and
  • Seek out Creative Commons or other freely licensed works when such substitutions can be made and respect the attribution requests in those works.

Citizen Media Law Project

“Ultimately, only a federal court can determine whether a particular use is, in fact, a fair use under the law.”
— United States U.S. Copyright Office.


DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

“…the fair use of a copyrighted work …is not an infringement of copyright.”
— United States Copyright Act of 1976 § 107.

Introduction to Fair Use

Fair Use is a legal exception to copyright law that allows for usage that primarily benefits the public. When the application falls under fair use, publishers do not have to seek permission from the copyrights holders or pay for licensing.

Examples of potential fair use include:

  • News: Newspapers can show a photo that includes artwork in a newsworthy story.
  • Commentary and criticism: People can show a work to discuss and critique it.
  • Parody: Comedians can make fun of the work itself.
  • Education: Teachers can make copies of artwork to teach about it.
  • Research and scholarship: Students can copy artwork to learn about it.
  • Archiving: Libraries can keep copies available for the public.
  • Internet Search: Thumbnail images of photos can be shown as part of an Internet search.

What Is The Law?

Fair Use is a provision of the U.S. copyright law found in Title 17 of the U.S. Code at Section 107.

17 U.S.C. § 107

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 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.

Fair Use is federal statutory civil law and is supported in common law from England. Fair Use is not a statutory law outside of the U.S., except in Israel. The U.K., Canada, and Australia have a similar but more limited concept called fair dealing. Some countries have little or no law on fair use.

Affirmative Defense

Fair Use is what is known as an “affirmative defense.” If the plaintiff can show likely (or “prima facie”) infringement under the law, then it becomes the defendant’s burden to submit and demonstrate that the actual use was “fair use.” For the defendant, this is akin to being innocent until proven guilty, then guilty until proven innocent. The defense has a burden of proof and must present facts and evidence to justify the usage.

Determination

There is no fixed line to determine what is, and what is not, fair use. It is a deliberate gray area and decisions are intended to be made on a case-by-case basis.

The law is purposefully vague, stating only “factors to be considered” “in any particular case.” This is particularly frustrating to people with a science, math, or engineering background (such as me), who want to know where the line is, as, unfortunately, there just isn’t one. A lawyer could advise what is likely to be fair use or not, but the only way to know for sure is to end up in court.

The main way to determine what is likely to be considered fair use is to view the situation through the lens of the “four factors.

Fair Use: Four Factors


DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

To make a determination of fair use, a court would look the four factors stated in the copyright law, namely:

  1. the purpose and character of the use;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

“The four statutory factors are to be explored and weighed together in light of copyright’s purpose of promoting science and the arts.”
— U.S. Supreme Court, Campbell v. Acuff-Rose Music, Inc., 1994.

Let’s look at each of the four factors in turn.

1. Purpose and Character

“The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test.”
— Judge Pierre Leval, ‘Toward a Fair Use Standard,’ 1990.

As Leval says, “Factor One is the soul of fair use.” The new work must be more than just a copy of the old work. Does it build on the previous work for the enrichment of society, or does it supersede the previous work for the enrichment of the author? In legal terms, is the work transformative or derivative?

“…the quoted matter [may be] …used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings…”
— Judge Pierre Leval, ‘Toward a Fair Use Standard,’ 1990.

2. Nature of the Copied Work

Although the quality of the original work is not a factor, other aspects may be. For example, is the work fictional or non-fictional?

3. Amount and Substantiality

Does the amount copied form “the heart” of the original work?

4. Effect upon Work’s Value

“This last factor is undoubtedly the single most important element of fair use. … Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied.”
— U.S. Supreme Court, Harper & Row v. Nation Enterprises, 1985.

Does the infringement substantially diminish the actual or potential opportunity of the original copyright owner to earn money from the original work?

“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.”
— U.S. Supreme Court, Campbell v. Acuff-Rose Music, Inc., 1994.

Other Factors

The four factors are not exclusive or limiting, and courts are allowed to considered other factors as well. These can include:

  • Standard Expressions (Scènes à faire). Elements of a creative work that are stereotypical, largely mandated by the limited range of expression possible, or are customary to the genre cannot be avoided and are thus fair use. For example, many photos of a bottle of alcohol may look the same (Joshua Ets-Hokin v. Skyy Spirits Inc., 2000).
  • Industry Practices What is typically done in business can affect what is considered fair use. For example, using a poster of artwork in the background of a TV show, although minor, is not fair use since the industry typically licenses such works (Ringgold v. Black Entertainment Television, Inc., 1997).
  • Facts, Ideas and Concepts. These are not protected by U.S. copyright law and thus are generally open to public use.

Case Law

The courts often base their rulings on prior cases, so it is worth knowing the landmark cases of fair use in photography.

Fair Use: Landmark Cases


DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

Although fair use is a statutory law codified by Congress, courts may also base their determinations on case law. The rulings of selected appellate and other courts (called courts of first impression) can be cited as precedents, and the most influential of those become landmark cases.

Here are some landmark cases concerning fair use and photography.

Thumbnails

Entire photos may be copied as thumbnails in online search results “if the secondary user only copies as much as is necessary for his or her intended use.” Kelly v. Arriba Soft Corporation, 2002.

Google can provide thumbnails in a search under fair use as the images are“highly transformative” and are “an entirely new use for the original work.” Perfect 10, Inc. v. Amazon.com, Inc., 2007.

Including thumbnails of Grateful Dead concert posters within a book was fair use as they were reduced in size and reproduced within the context of a timeline. Bill Graham Archives v. Dorling Kindersley Ltd., 2006.

Amount Copied

Copying 400 works from a book in a political opinion magazine is not fair use if those words form “the heart” of the book and are thus substantial. Harper & Row, Publishers, Inc. v. Nation Enters, 1985.

TV Artwork

Artwork used in the background of TV shows must be licensed when it clearly visible and recognizable with sufficient observable detail for the “average lay observer.” Ringgold v. Black Entertainment Television, Inc., 1997.

Photos that “appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable” can be used without permission since the use is very minor (“de minimis”) and a fair use analysis is not required. Sandoval v. New Line Cinema Corp., 1998.

Commercial Copying for Education

Selling copies of articles as course-packs to students is not fair use when a market already exists for the licensing for course materials.Princeton Univ. Press v. Michigan Document Services, 1999.

Sculptures

Using a photo of a sculpture on a stamp without approval from the sculptor is not fair use, even when the government commissioned the sculpture. Gaylord v. United States, 2010.

Personal Use

Entire TV programs can be copied under fair use when done for private viewing and the purposes of time-shifting, as the “delayed” system of viewing does not deprive the copyright owners of revenue. Sony Corp. v. Universal City Studios, 1984.


History

Fair Use: History


DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

Fair Use dates to 1709. In Europe, printing presses had allowed criticism of governments to be easily published, so governments controlled who printed books by requiring official licenses to trade and produce books. When England’s Licensing Act of 1662 expired, a more comprehensive version was drafted.

The Statute of Anne, 1709

The world’s first fully-fledged copyright law was enacted in Britain. Entitled the Copyright Act 1709 it was better known as the Statute of Anne, after the queen at the time.

“An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.”
— The full title of the Statue of Anne, 1709.

The statute, however, gave a legal monopoly to publishers without any exceptions. Even though the stated objective was “the encouragement of learning,” the law favored private over public gain.

Gyles v Wilcox, 1740

In a copyright lawsuit, the concept of legal non-licensed copying was introduced, called the doctrine of fair abridgement. Judge Lord Hardwicke ruled that a book could conceivably be shortened for education to form a new and separate work, provided it was sufficiently different and “fairly made” with honest intentions.

“[Copyright] is far from being a monopoly, as it is intended to secure the property of books in the authors themselves, or the purchasers of the copy, as some recompence for their pains and labour in such works as may be of use to the learned world.”
— Jurist Lord Hardwicke (Philip Yorke), Gyles v Wilcox, 1740.

Copyright law now had to serve the public interest by promoting the creation of new educational and useful works. Editors became akin to authors, and labor joined originality as a factor in authorship. As recently as 1986, U.S. federal courts have cited the case.

Over time, the concept of fair abridgment evolved and expanded through British and U.S. common law.

U.S. Copyright Act of 1790

America’s first copyright act was, ironically, an almost verbatim copy of Britain’s copyright act.

Folsom v. Marsh, 1841

In Massachusetts, Justice Joseph Story significantly expanded the limitations of copyright law. He also established the four factors for analysis of what is now called fair use.

“[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. …

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.”
— Justice Joseph Story, Folsom v. Marsh, 1841.

Copyright Act of 1976

Fair Use became statutory law in 1976 when it was incorporated into the U.S. legal code, under Title 17, Section 106.

Although the fair use law is less than 200 words long, there are often many questions about it. Let’s review some frequently asked questions about fair use and photography.

Fair Use: FAQ


DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

I receive many questions about what is or is not fair use. Here are some of the most asked. (For some reason, most of the answers are “no” — sorry about being negative.)

Is any Use that is “Fair” Automatically Fair Use?

No. Fair Use is a legal term that, although stemming from the English phrase, has its own definition. What you or someone else may consider fair or not fair (“no fair!” as my kids say) is not really relevant.

Can I Copy an Image Under Fair Use If it Doesn’t have the Copyright Symbol?

No. The copyright symbol is not necessary under U.S. law. The creator still has copyright.

Can I Copy an Image Under Fair Use If I Give Credit To The Photographer or Include a Disclaimer?

No.Giving credit does not affect fair use. Including a credit: (a) is nice; (b) may be a requirement of a license; and (c) avoids the appearance of plagiarism, but that’s an ethic not a law.

Is it Fair Use to Copy Works in the Public Domain?

You are already free to copy works that are in the public domain. Fair use does not apply when it’s not an infringement in the first place.

I Heard That Copying Less Than 300 Words of Text is Fair Use, Correct?

No. That number comes from a now-defunct agreement between New York publishers that was informal and not a law. There is no word limit in the law. The question is usually: Is the amount substantial?

If I’m Not Making Money from the Use then it’s Fair Use, Correct?

No. It’s the effect on the other guy that counts. If the owner of the copyright of the original work now has less of an opportunity to make money due to your action, then your use would not be fair use.

Is Including a Photo in a Non-Commercial Blog Fair Use?

No, not necessarily. The photographer may, or could potentially, be offering that photo on a microstock site for paid licensing on blogs. Thus, the use may fail the fourth factor of fair use.

Is Anything To Do with News Fair Use?

No. Fair Use certainly applies when the story is truly newsworthy at the time of publication. But here’s some news: Yesterday’s news is not news. The same story published later, may not be fair use — the passage of time has changed the use. Also, editorials may sometimes be advertorials, or ads dressed up as news, which doesn’t pass muster.

Can I Copy Facts?

Yes! Many things are not protected by copyright law and thus are not subject to fair use determination. These include facts, ideas, concepts, processes, works by the US Government, works in the public domain, and unavoidable artistic expressions.

What is “Editorial Use”? Is it the same thing as Fair Use?

It is related. Editorial Use is a publishing term based on the Fair Use exception of copyright law, but it often also covers other issues such as trademark and publicitiy. Editorial Use often pertains to newsworthy and commentary usage and contrasts with “Commercial Use.”

Let’s review editorial and commercial use.

Part 3: Use:
3.5 Fair Use

“.. the fair use of a copyrighted work .. is not an infringement of copyright.”
17 USC §107

What is “fair use”?

“[Fair use] is a means of balancing the need to provide individuals with sufficient incentives to create public works with the public’s interest in the dissemination of information.”
—Hustler v Moral Majority, 796 F.2d 1148, 1986

Fair use is a statatory exception to copyright for purposes that clearly benefit the public. News, education, and research are prime examples.

“The doctrine of fair use .. permits the reasonable use of copyrighted material without the owner’s consent when such use would tip the balance between the public interest in the free flow of information and the copyright holder’s exclusive control over the work in favor of the public.”
DC Comics, Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 27 (2d Cir.1982).

Copyright was intented for “we the people” yet it is given to the individual, so the doctrine of fair use ensures that, whenever public benefit and private gain clash, we the people win.

“We the People of the United States, in Order to .. promote the Progress of Science and useful Arts, .. [give authors] the exclusive Right to their respective Writings and Discoveries.”
Preamble and Article I, Section 8, Clause 8 of the United States Constitution.

“The sole interest of the United States and the primary object in conferring the monopoly, lie in the general benefits derived by the public from the labors of authors.”
— Fox Film Corp. v. Doyal, 286 U.S. 123, 127.

“[T]he Framers intended copyright .. to be the engine of free expression.”
— Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985).

“There are many situations in which copyright restrictions would inhibit dissemination, with little or no benefit to the author. And the interests of authors must yield to the public welfare where they conflict.”
1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

“Within limits, the author’s interests coincide with those of the public. Where they conflict, the public interest must prevail. The ultimate task of the copyright law is to strike a fair balance between the author’s right to control the dissemination of his works and the public interest in fostering their widest dissemination.”
1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

Fair use case law

The claim that a defendant’s acts constituted a fair use rather than an infringement has been raised as a defense in innumerable copyright actions over the years, and there is ample case law recognizing the existence of the doctrine and applying it. The examples enumerated at page 24 of the Register’s 1961 Report, while by no means exhaustive, give some idea of the sort of activities the courts might regard as fair use under the circumstances:

  • quotation of excerpts in a review or criticism for purposes of illustration or comment;
  • quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations;
  • use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report;
  • reproduction by a library of a portion of a work to replace part of a damaged copy;
  • reproduction by a teacher or student of a small part of a work to illustrate a lesson;
  • reproduction of a work in legislative or judicial proceedings or reports;
  • incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.

House Report No. 94-1476

Deciding fair use — where’s the line?

Unfortunately, fair use is very confusing. The law is purposefully vague and there are only gray areas and no lines. This is very frustrating for many people but it is deliberate, to allow courts to adjudicate each situation on a case-by-case basis.

“Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must bedecided on its own facts. ”
U.S. Copyright Office, Circular 21

“..the courts must be free to adapt the doctrine to particular situations on a case-by-case basis.”
— The Report of the Committee on the Judiciary of the House, No. 94-1476, 94th Cong., 2nd Sess. 65-66 reprinted in 1976 U.S.Code, quoted by U.S. Copyright Office, Circular 21

“The ultimate determination of whether a use is fair requires a case-by-case analysis in which the four factors are to be ‘weighed together in light of the purposes of copyright.’”
NÚÑEZ v. CARIBBEAN INTERNATIONAL NEWS CORP, 2000, quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994).

The golden rule of fair use

There isn’t a golden rule to fair use, but if there were, it might be: if the public at large benefits and the copyright owner suffers no significant potential monetary harm, then a use could be fair and authorization to copy would not be needed.

How a “fair use” decision is made

Unauthorized copying is either a fair use or an infringement of copyright. Without going to court, no one can tell you what definitely is or is not fair use. A lawyer could advise if your proposed use is probably fair or not. But the best advice you can get will only be a guide.

“The Copyright Office cannot give legal advice or offer opinions on what is permitted or prohibited.”
U.S. Copyright Office, Circular 21

The actual answer can only come from a federal judge’s ruling.

“Where material facts are not in dispute, fair use is appropriately decided on summary judgment.”
— Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 800 (9th Cir. 2003).

“[Fair use] is so flexible as virtually to defy definition.”
— Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 144 (S.D.N.Y. 1968)

Part 3: Use:
3.5 Fair Use:
The Law

Let’s see what the Copyright Act says.

“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.

17 USC §107

The fair use law has two sentences. The first gives examples of public-interest disciplines, such as journalism and education. The second provides a test to determine fair use using “four factors,” the most significant of which is the last one, which tests for commercial gain.

Case law has touched on some (but not all) examples that we can look at each.

“One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years..”
U.S. Copyright Office, FL-102

Public-Interest Disciplines

The Fair Use Test

Examples

Part 3: Use:
3.5 Fair Use:
Public-Interest

Part 3: Use:
3.5 Fair Use:
Public-Interest:
News

“.. fair use .. such as criticism, comment, news reporting..”
17 USC §107

“[Examples of fair use] that may be permitted..:

  • Summary of an address or article, with brief quotations, in a news report.

1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

“.. informing the public.. It is hard to imagine a subject the discussion of which could be more in the public interest. ”
— Diebold, 337 F. Supp. at 1203

“[T]he news element — the information respecting current events contained in the literary production — is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day.”
— International News Service v. Associated Press, 248 U.S. 215, 234 (1918).

“.. in news reporting, context is everything..”
Campbell v Acuff-Rose

“denying copyright protection to news pictures might defeat the ultimate First Amendment goal of greater public access to information by inhibiting or destroying the business of news photography.”
— Los Angeles News Service v. Tullo 1973 F. 2d 791 9th Circ. 1992, quoting Nimmer -84.1 — 1-85.

“[E]ven substantial quotations might qualify as fair use in a review of a published work or a news account of a speech.”
— Harper & Row, supra, at 564.

“Courts should be chary of deciding what is and what is not news.”
— Harper & Row, 471 U.S. at 561, 105 S.Ct. 2218.

“The fact that an article arguably is ‘news’ and therefore a productive use is simply one factor in a fair use analysis.”
— Harper & Row, 471 U.S. at 561, 105 S.Ct. 2218.

“[reproduction of posters to] enhance[] the reader’s understanding of the .. text [and to] serve as historical artifacts graphically representing [the story was fair use]”
— Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609-10 (2d Cir. 2006).

“the transformation of the works into news ..weighs in favor of fair use.”
— Nunez, 235 F.3d at 23

“..to copy any less than that would have made the picture useless.”
— Nunez, 235 F.3d at 24.

“..the act of posting this five-sentence excerpt of a fifty sentence news article on a political discussion forum is a fair use pursuant to 17 U.S.C. § 107, and that the fair use doctrine provides a complete defense to the claim of copyright infringement..”
— U.S. District Court for Nevada, Righthaven v Democratic Underground, March 2012

Part 3: Use:
3.5 Fair Use:
Public-Interest:
Education

“[Copyright law should] promote the Progress of Science and the useful Arts [and to encourage] Learned [writers] to compose and write useful Books.”
— Act for the Encouragement of Learning, 1709, 8 Anne, ch. 19.

“..copyright is intended to increase, and not to impede, the harvest of knowledge.”
— Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985). at 545.

“The guidelines relating to multiple copies for classroom use indicate that such copying is permissible if three tests are met. First, the copying must meet the test of ‘brevity’ and ‘spontaniety.’ ‘Brevity’ is defined, for prose, as ‘[e]ither a complete article, story or essay of less than 2,500 words, or an excerpt from any prose work of not more than 1,000 words or .. 10% of the work, whichever is less..’ ..‘spontaniety’ requires that ‘[t]he copying is at the instance and inspiration of the individual teacher, and .. [t]he inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.’”
— Marcus v. Rowley, 695 F. 2d 1171 - Court of Appeals, 9th Circuit 1983

Single copies for Classroom Use

“A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:

  • A chapter from a book
  • An article from a periodical or newspaper
  • A short story, short essay or short poem, whether or not from a collective work
  • A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper

U.S. Copyright Office, Circular 21

Multiple Copies for Classroom Use

“Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:

  • The copying meets the tests of brevity and spontaneity as defined below and,
  • Meets the cumulative effect test as defined below and,
  • Each copy includes a notice of copyright

U.S. Copyright Office, Circular 21

Brevity of Prose

“(a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.”
U.S. Copyright Office, Circular 21

Brevity of Illustration

“One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.”
U.S. Copyright Office, Circular 21

Spontaneity

“The copying is at the instance and inspiration of the individual teacher, and the inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.”
U.S. Copyright Office, Circular 21

Cumulative Effect

  • i The copying of the material is for only one course in the school in which the copies are made.
  • ii Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term.
  • iii There shall not be more than nine instances of such multiple copying for one course during one class term.

U.S. Copyright Office, Circular 21

“Copying shall not:

  • substitute for the purchase of books, publishers’ reprints or periodicals;
  • be directed by higher authority;
  • be repeated with respect to the same item by the same teacher from term to term.

U.S. Copyright Office, Circular 21

Part 3: Use:
3.5 Fair Use:
Public-Interest:
Research

“.. fair use .. such as scholarship, or research, is not an infringement of copyright.
17 USC §107

Part 3: Use:
3.5 Fair Use:
Public-Interest:
Parody

“[Examples of fair use] that may be permitted..:

  • Quotation of excerpts in a review or criticism for purposes of illustration or comment.

1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

“The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line.”
Campbell v Acuff-Rose

“..parody may or may not be fair use.. Accordingly, parody,like any other use, has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law.”
Campbell v Acuff-Rose

“In parody, as in news reporting, context is everything”
Campbell v Acuff-Rose

Case law

  • Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).
  • Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (S.D. N.Y.), aff’d 632 F.2d 252 (2d Cir. 1980).
  • Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).
  • Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).
  • Steinberg v. Columbia Pictures Industries, Inc., 663 F. Supp. 706 (S.D. N.Y. 1987).
  • Rogers v. Koons, 751 F. Supp. 474 (S.D.N.Y. 1990) aff’d 960 F.2d 301 (2d Cir. 1992)
  • Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. 1998)

Last two are appropriation art?

Part 3: Use:
3.5 Fair Use:
Private

“[People] may use [copyrighted] work for their own enjoyment, but copyright restrains them from reproducing the work without the owner’s consent.”
1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

“..private, noncommercial [use is presumptively fair].”
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449 (1984).

Part 3: Use:
3.5 Fair Use:
Private:
Quantity

How much of a work can I use under fair use?

“There is no specific number of words, lines, or notes that may safely be taken without permission.”
U.S. Copyright Office, FL-102

“[Perhaps] no more precise guide can be stated than Joseph McDonald’s clever paraphrase of the Golden Rule: ‘Take not from others to such an extent and in such a manner that you would be resentful if they so took from you.’”
— Nimmer 13.05[A], at 13-66, quoting McDonald, Non-infringing Uses, 9 Bull.Copyright Soc. 466, 467 (1962).

“There are no absolute rules as to how much of a copyrighted work may be copied and still be considered a fair use.”
— Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir.), cert. denied, 481 U.S. 1059, 107 S. Ct. 2201, 95 L. Ed. 2d 856 (1987).

“..the amount of a work that may be properly used under that doctrine will vary according to the nature of the work, the essential character of the portion used, and the purpose and competitive effect of the use.”
1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

What if I include a credit?

“Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”
U.S. Copyright Office, FL-102: Fair Use

“There are no absolute rules as to how much of a copyrighted work may be copied and still be considered a fair use.”
— Maxtone-Graham, 803 F.2d at 1263.

Can I use quotes or samples?

“There are circumstances under the fair use doctrine where a quote or a sample may be used without permission.”
U.S. Copyright Office, FAQ

If I make small changes, does that count?

“Making minor changes or additions of little substance to a preexisting work will not qualify a work as a new version for copyright purposes. The new material must be original and copyrightable in itself.”
U.S. Copyright Office, Circular 14

Part 3: Use:
3.5 Fair Use:
Private:
Commercial

See Commercial.

Part 3: Use:
3.5 Fair Use:
Private:
Transformative

“the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
— Acuff-Rose, 510 U.S. at 579.

“[as a general rule, if the new work] merely supersedes the objects of the original creation, [it is not transformative, but if it] adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message, [it is transformative.]”
— Campbell, 510 U.S. at 579.

“Although such transformative use is not absolutely necessary for a finding of fair use, .. the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
— Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

Case law

  • Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).
  • Warren Publishing Co. v. Spurlock d/b/a Vanguard Productions, 645 F. Supp. 2d 402, (E.D. Pa., 200: new9).

Part 3: Use:
3.5 Fair Use:
Case Law:
Photocopying

My local copying store will not make reproductions of old family photographs. What can I do?

“Photocopying shops, photography stores and other photo developing stores are often reluctant to make reproductions of old photographs for fear of violating the copyright law and being sued. These fears are not unreasonable, because copy shops have been sued for reproducing copyrighted works and have been required to pay substantial damages for infringing copyrighted works. The policy established by a shop is a business decision and risk assessment that the business is entitled to make, because the business may face liability if they reproduce a work even if they did not know the work was copyrighted.”
U.S. Copyright Office, FAQ

“There may be situations in which the reproduction of a photograph may be a ‘fair use’ under the copyright law. However, even if a person determines a use to be a ‘fair use’ under the factors of section 107 of the copyright act, a copy shop or other third party need not accept the person’s assertion that the use is noninfringing. Ultimately, only a federal court can determine whether a particular use is, in fact, a fair use under the law.”
U.S. Copyright Office, FAQ

Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991).

BonusPrint: I confirm I have the right to print the image(s) and that it does not breach copyright. I agree to assume any liabilities that may occur if a claim is brought against Bonusprint for printing the image(s).

Part 3: Use:
3.5 Fair Use:
Case Law:
Search Engines, Thumbnails

Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007).

Kelly v. Arriba Soft Corporation (280 F.3d 934 (CA9 2002).

Part 3: Use:
3.5 Fair Use:
Case Law:
Photos in TV Shows

TV shows that feature photos and artwork

Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).

Part 3: Use:
3.5 Fair Use:
Case Law:
Photos of Sculptures

Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010).

Part 3: Use:
3.5 Fair Use:
If in doubt

“The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.”
U.S. Copyright Office, FL-102

“When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.”
U.S. Copyright Office, FL-102

“The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission. When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.”
U.S. Copyright Office, FL-102: Fair Use

“The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate [the creation of useful works] for the general public good.”
— Twentieth Century Music Corp. v. Aiken

“The general scope of fair use can be indicated by the following examples of the kinds of uses that may be permitted under that concept:

  • Quotation of excerpts in a review or criticism for purposes of illustration or comment.
  • Quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations.
  • Use in a parody of some of the content of the work parodied.
  • Summary of an address or article, with brief quotations, in a news report.
  • Reproduction by a library of a portion of a work to replace part of a damaged copy.
  • Reproduction by a teacher or student of a small part of a work to illustrate a lesson.
  • Reproduction of a work in legislative or judicial proceedings or reports.
  • Incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located at the scene of an event being reported.

1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

Part 3: Use:
3.6. No Fair Use

What am I prevented from doing with someone else’s photo?

“Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

  • reproduce the work in copies
  • prepare derivative works based upon the work
  • distribute copies of the work to the public by sale or other
  • transfer of ownership, or by rental, lease, or lending
  • display the work publicly

U.S. Copyright Office, Circular 1

What if I copy a copyrighted work?

“It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright.”
U.S. Copyright Office, Circular 1

Does the copyright have to be registered to count?

“[For works after 1977] ..registration is not a condition of copyright protection.”
U.S. Copyright Office, Circular 1

I found a photo in a book. Does the book publisher or the photographer own the copyright?

“Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.”
U.S. Copyright Office, Circular 1

Can I search for copyrights online?

“Copyright Office records in machine­readable form cataloged from January 1, 1978, to the present, including registration and renewal information and recorded documents, are available for searching on the Copyright Office website at www.copyright.gov.”
U.S. Copyright Office, Circular 1

For a newspaper photo, who owns the copyright?

“In the case of works made for hire, the employer and not the employee is considered to be the author. .. a “work made for hire” [includes] a work prepared by an employee within the scope of his or her employment.”
U.S. Copyright Office, Circular 1

The photographer is not a U.S. citizen. Does U.S. copyright apply?

“Copyright protection is available for all unpublished works, regardless of the nationality or domicile of the author.”
U.S. Copyright Office, Circular 1

The photographer is dead. Who owns the copyright?

“A copyright .. may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.”
U.S. Copyright Office, Circular 1

“Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business.”
U.S. Copyright Office, Circular 1

Photograph died

“If the photographer is no longer living, the rights in the photograph are determined by the photographer’s will or passed as personal property by the applicable laws of intestate succession.”
U.S. Copyright Office, FAQ

There is no copyright notice. Does that matter?

“Notice was required .. This requirement was eliminated when the United States adhered to the Berne Convention, effective March 1, 1989.”
U.S. Copyright Office, Circular 1

“Before March 1, 1989, the use of copyright notice was mandatory on all published works, and any work first published before that date should have carried a notice. For works published on or after March 1, 1989, use of copyright notice is optional.”
U.S. Copyright Office, Circular 14

Stanford / Nolo

Fair use cases, Stanford

Related: Nominative fair use (trademark).

“With certain special exceptions … a use that supplants any part of the normal market for a copyrighted work would ordinarily be considered an infringement.”
— Senate Report, at 65.

“The fair use defense turns not on hard and fast rules but rather on ‘an examination of the facts in each case.’
DC Comics, Inc. v. Reel Fantasy, Inc., 1982

“The roots of what we now know as ‘fair use’ are firmly planted in the early English common law, where the defense was known as ‘abridgment.’”
Maxtone-Graham v. Burtchaell, 803 F. 2d 1253 - Court of Appeals, 2nd Circuit 1986

“Where books are colourably shortened only, they are undoubtedly within the meaning of the [copyright act], and are a mere evasion of the statute, and cannot be called an abridgment. But this must not be carried so far as to restrain persons from making a real and fair abridgment; for abridgments may, with great propriety, be called a new book, because not only the paper and print, but the invention, learning, and judgment of the author is shewn in them, and in many cases are extremely useful, though in some instances prejudicial, by mistaking and curtailing the sense of an author.”
— Lord Chancellor Hardwicke in Gyles v. Wilcox, 1740

“In short, we must often, in deciding questions of this sort, 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.”
— Folsom v. Marsh, 1841

“[N]o one can doubt that 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 criticise, 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.”
— Folsom v. Marsh, 1841

“While I shall think myself bound to secure every man in the enjoyment of his copyright, one must not put manacles upon science.”
— Lord Ellenborough

MY TEXT: Fair use is an affirmative defenses so the defendant bears the burden of proof.

“The tantalizing and even newsworthy interest in the photos does not trump a balancing of the fair use factors.”
Monge v. Maya Magazines, 2012.

“What constitutes [Fair use] … is one of the most difficult points, under particular circumstances, which can well arise for judicial discussion.”
Justice Story in Folsom v. Marsh, 1841

“the metaphysics of [fair use], where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent.”
Justice Story in Folsom v. Marsh, 1841

“The issue of fair use [is] the most troublesome in the whole law of copyright.”
Dellar v. Samuel Goldwyn, 1939.

“[Fair use] is so flexible as virtually to defy definition.”
Time Incorporated v. Bernard Geis Associates, 1968

“The line which must be drawn between fair use and copyright infringement depends on an examination of the facts in each case. It cannot be determined by resort to any arbitrary rules or fixed criteria.”
Meeropol v. Nizer, 1977

“[t]he public interest in the free flow of information is assured by the law’s refusal to recognize a valid copyright in facts.”
Iowa State Univ. Research Found., 1980

“The fair use doctrine is not a license for corporate theft, empowering a court to ignore a copyright whenever it determines the underlying work contains material of possible public importance.”
Iowa State v. ABC, 1980

“The doctrine of fair use, originally created and articulated in case law, permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.”
Iowa State v. ABC, 1980

“[t]he promise of copyright would be an empty one if it could be avoided merely by dubbing the infringement a fair use ‘news report’ of the [work].”
Harper & Row, 1985.

“[The magazine] went beyond simply reporting uncopyrightable information and actively sought to exploit the headline value of its infringement, making a ‘news event’ out of its unauthorized first publication of [the] copyrighted expression.”
Harper & Row, 1985

“[T]the unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defense of fair use. … [U]nder ordinary circumstances, the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.”
Harper & Row, 1985

“Under section 107, ‘potential market’ means either an immediate or a delayed market, and includes harm to derivative works.”
Cable/Home Commc’n Corp. v. Network Prods., 1990

“Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.”
White v. Samsung, 1993

“[T]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
Campbell v. Acuff-Rose, 1994

“It would … not serve the ends of the Copyright Act — i.e., to advance the arts — if artists were denied their monopoly over derivative versions of their creative works merely because they made the artistic decision not to saturate those markets with variations of their original.”
Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., 1998

“Indeed, the idea that photography is art deserving [copyright] protection reflects a longstanding view of Anglo-American law.”
Ets-Hokin v. Skyy Spirits, 2000

“[e]ven an author who had disavowed any intention to publish his work during his lifetime was entitled to protection of his copyright, first, because the relevant consideration was the `potential market’ and, second, because he has the right to change his mind.”
Worldwide Church of God v. Philadelphia Church of God, 2000

“[Each photo] can live [its] own copyright life [and] has an independent economic value and is, in itself, viable.”
Columbia Pictures TV, Inc. v. Krypton Broad. of Birmingham, 2001

“the protection of privacy is not a function of the copyright law.”
Bond v. Blum, 2003

“However, news reporting does not enjoy a blanket exemption from copyright. News organizations are not free to use any and all copyrighted works without the permission of the creator simply because they wish to report on the same events a work depicts.”
Murphy v. Millennium Radio, 2011.

Also see: de minimis.

Next: Commercial »

Next page: Commercial

Comments

Comments


Reply by Ann

October 3, 2015

Can you please advise what your thoughts are regarding the following:

A couple having marital issues called together a group of four people(husband, wife, sister-in-law and a school day friend of wife) to listen to the husband. They were not aware they were being recorded by the wife. The entire 3+ hrs. was spent discussing and the husband bashing my granddaughter (since husband thought granddaughter was influencing his wife and attempting to break up the marriage) The husband made some serious remarks including discussing credit score of subject (to discredit her supposedly), and convince them to agree with him against his wife. When he found out the session had been recorded and his wife had given the file to my granddaughter to upload he immediately started plans and filed for a copyright of the video in his wife’s name. Now the husband and wife are suing my granddaughter for copyright infringement. She was not aware that copyright was being requested. Does granddaughter have any rights to this copyright or can she have it overturned since she was the entire subject?


Reply by Andrew Hudson, PhotoSecrets

January 12, 2016

Hi Ann.

Well this sounds like a messy situation.

I am not a lawyer and this is not legal advice.

Copyright may not be the real issue; privacy might be.

Since the wife made the recording, the wife owns the copyright. If the wife gave the granddaughter the tape to upload, then that is tacit permission for the granddaughter to use the tape. The granddaughter does not own any copyright in the tape but she does seem to have permission to use it for the purposes it was given to her. I don’t see how the wife can sue for infringement since she already gave tacit permission for use.

This is unlikely to become a court case. Copyright is a federal law and can cost in the order of $100,000 to get a ruling. The damages, if any, are probably too small to merit a court case. This is known as “de minimis. This “insulates from liability those who cause insignificant violations of the rights of others” — Ringgold v. BET, 1997.

More of an issue might be privacy, for recording a conversation without permission. For example, California’s wiretapping law requires consent by both (or all) parties, including for hidden recorders and confidential/private conversations. See Wikipedia: Telephone recording laws. That is an easier case to make.

Why does the granddaughter even want this tape? Just give it back. This sounds like a good situation to get away from.


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