The Copyright Book by William S. Strong

Author:William S. Strong [Strong, William S.]
Language: eng
Format: epub
Tags: law, business, management, intellectual property, copyright
ISBN: 9780262027397
Publisher: The MIT Press
Published: 2014-04-10T04:00:00+00:00

9 Fair Use

In infringement suits the two great principles of copyright law almost invariably clash: on one hand the need to protect the financial interests of creators, to make it worth their while to create; on the other hand the need to make each person’s addition to the sum of human art and knowledge available for the use of all. From this second principle has evolved the concept of “fair use” of copyrighted material. Fair use, as its name makes no attempt to conceal, is not a fixed navigational point; in any given case much will depend on the judge or jury’s instincts.

Underlying the concept of fair use is the problem of economic competition. A use is most likely to be considered permissible if the resulting work does not poach on the commercial value of the original. In this context the quality or nature of the use becomes of primary concern. The Supreme Court has stated that “transformative” uses are more likely to be fair than mere duplicative uses; I will discuss this point further in a moment.

The statute adopts four criteria, developed by courts over the last 150 years, by which a use should be judged fair or unfair:

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;

4. The effect of the use on the potential market for or value of the copyrighted work.1

The statute says that these factors are not necessarily exclusive, but in over 30 years the courts have not strayed from them. Nor should they be—though they often are—applied in a lockstep, mechanical manner. Fair use is really a gestalt, as the Supreme Court reminded us in a famous parody decision (which I will discuss momentarily). Indeed, a more elegant formulation may be the one that Justice Joseph Story gave back in 1841, and which Justice Souter quoted with evident approval in 1994: when assessing fair use, judges should “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.”2

Scholarly and Related Use of Text and Images

Scholarly quotation is one of the most ancient forms of fair use, as is news coverage. The law’s interest in propagating knowledge requires that critics, news reporters, and similar persons be allowed to quote from works without paying for the privilege. News media should also be allowed to perform small portions of movies, music, and other performable works for purposes of criticism, a common example being the movie reviews on the evening news. Also, news coverage will necessarily perform bits of music or display public art when these are part of the background of the event being covered; think of political conventions with their brass bands and rock stars.

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