Lawyers Journal

Best practices information on copyright law 
and avoiding copyright infringement

Generally speaking, the best way to avoid violating a copyright is to simply obtain the author's written permission before using that expression of ideas or facts or to restate the idea in your own words.1 Additionally, not every unauthorized use of a copyrighted work may violate copyright infringement. Fair use may serve as a defense to copyrighted material without authorization when the purpose is for: criticism, scholarship, education, comment, reporting on the news, teaching or research. Such uses may serve as a defense against a claim of copyright infringement; however, neither the educational exceptions in the Copyright Act nor the statute's definition of fair use delineate specific permissible uses. Consequently, it is difficult to determine what exactly is protected, and whether something is or is not a fair use must be examined on a case-by-case basis.

What is copyright?

Copyright is the lawful right of an author, artist, composer or other creator to control the use of their work by others.2 Under current law, copyright protection begins when an eligible work is "fixed in a tangible medium of expression."3 This includes: fiction and nonfiction writings, poetry, musical compositions, audio recordings, photos, paintings, drawings, sculptures, and movies, among others.4 Copyright law does not protect ideas or facts; it simply protects the form in which ideas or facts are communicated.5

To determine whether a work is available for use without the author's permission, you must first determine when the work was published, followed by checking to see if the copyright has expired.6 All works published in the United States before 1923 are in the public domain, whereby it is not protected by copyright and may be used freely.7 Works published after 1922 but before 1978 are protected for 95 years from the date of publication, while works created (but not published) before 1978 last for the life of the author plus 70 years.8 For works published after 1977, the copyright lasts for the life of the author plus 70 years, unless it is published under a pseudonym or anonymously or deemed to be a "work for hire" (work that is done in the course of employment or specifically commissioned), in which case the copyright could last anywhere from 95 to 120 years.9 Moreover, works created by the government or its employees, as part of their job, are generally in the public domain.10

Generally speaking, a copyrighted work may not be duplicated, disseminated or appropriated by others without the author's permission.11 Subject to certain limitations, a copyright owner has the exclusive right to: make copies of the work and distribute them to the public, prepare new works derived from the original, and perform or display the work.12 However, copyright law also has a number of defenses to allow for certain uses of protected works that do not infringe copyright holders' rights. A main defense to copyright protection is the doctrine of fair use.13

What is the doctrine of fair use?

In general, fair use may serve as a defense for a party using copyrighted material without authorization when the purpose is for: criticism, scholarship, education, comment, reporting on the news, teaching or research, if other criteria are satisfied.14 Such uses may serve as a defense against a claim of copyright infringement.15 When examining whether an unlicensed use of copyrighted material is "fair use," courts examine whether the use qualifies as a fair use in light of four factors.16

Fair use may protect an individual using copyrighted works without permission, regardless of medium, when examination of the circumstances suggests the use is fair. The fair use test examines four factors: 1) purpose and character of the use; 2) nature of the copyrighted work; 3) amount and substantiality of the portion used in relation to the copyrighted work as a whole; and, 4) market effect.17 I will address each factor below individually; however, the four factors are not a checklist that must all weigh toward the fair user for courts to find a fair use.18 Rather, all of these factors must be examined on a case-by-case basis and analyzed pursuant to the specific scenario at issue.

Purpose and character of the use

The first prong involves examining the purpose and character of the use, most notably whether the use is "transformative" or not.19 A work is transformative if it "adds something new, with a further purpose or different character, altering the first with new expression, meaning or message."20 At issue is whether the material has been used to help create something new or is simply copied from another work.21

When taking portions of copyrighted work and thinking about potential future litigation, one should ask if the material has been transformed by adding new expression or meaning and was value added to the original by creating new information, aesthetics, or understandings? Transformative works are the heart of the fair use protection within copyright.22 However, a non-transformative use may still be able to satisfy the first prong under certain circumstances.

Examining the purpose and character of the use also involves surveying whether the use is commercial in nature or is for nonprofit educational purposes.23 If the purpose and character of the use is for non-profit educational activity, it will tend to weigh in favor of fair use.24 Other factors that sometimes weigh in the analysis of the first prong include whether the use in question is a reasonable and customary practice, whether the fair user has acted in bad faith or not properly credited the author of the copyrighted work, and whether the use advances a socially beneficial activity, such as criticism, comment, news reporting, teaching, scholarship or research.25

Nature of the copyrighted work

This prong involves examining the nature of the copyrighted work.26 The two main considerations under this prong are whether the work is published or unpublished and how creative it is.27 Generally speaking, unpublished works and creative works are afforded a greater latitude of protection.28 Unpublished works receive more protection, as the author has an important reason in determining whether and when their work is published. Moreover, copyright protects expression, not ideas or facts.29 Consequently, creative works tend to generally receive more protection than merely factual works.30

Amount and substantiality of the portion used in relation to the whole work

The third prong examines the amount and substantiality of the portion borrowed from the copyrighted work as a whole, taking into account whether more of the work was used than was necessary.31 Here, courts look at the nexus between the purpose of the fair use and the portion of copyrighted work taken.32 While there is no "bright line test" and each use is examined on a case-by-case basis, taking more of the original work than is necessary to accomplish your intended purpose is likely to weigh against fair use when examined by a court.33

Effect of the use upon the potential market for or value of the copyrighted work.

The fourth and final factor protects the copyright owners' financial interests in being able to create and sell works.34 This involves examining the effect upon the potential market for or value of the copyrighted work.35 If, for example, the material was specifically marketed for classroom use and the educator's illegal use of the material would decrease purchases or licenses that would otherwise likely occur, the court would tend to weigh this factor against it being a fair use.36 Use that adversely impacts, or is likely to adversely impact, the market for the copyrighted work, is less likely to be considered a fair use, particularly if the use results in lost sales to the copyright owner.37

Generally speaking, where there is no established market, harm or potential harm is less likely to be found; nonetheless, the analysis still depends on the other factors.38 The effect of the use upon the potential market for or value of the copyrighted work is a matter of degree and the significance of this factor varies contingent on the amount of harm and comparative strength to the other factors.39

Sample of case law regarding fair use

As mentioned above, courts consider four factors when analyzing whether using a copyrighted work will be considered fair use.40 Courts will also look at the varying audiences and markets and whether the user took only as much of the original work as was necessary.41

Below are just a few examples of cases which have examined the question of what constitutes as fair use. These are merely examples of what has and has not been found by courts to constitute as a fair use defense to copyright infringement and should not be taken as concrete fair use defenses to replicate or ways to definitively avoid litigation. As mentioned above, the fair use defense analysis must be examined on a case-by-case basis.

Cases Involving Fair Use

Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F. Supp. 1526 (C.D. Cal. 1985): Publisher Larry Flynt made disparaging statements about the Reverend Jerry Falwell on a page of Hustler magazine. Rev. Falwell made several copies of the page and distributed them as part of a fund-raising effort. The court upheld the lower court's determination that defendants' reproduction and distribution was a fair use, despite the fact that the defendants reproduced essentially the entire work. The court found that the character of the use fit within the criticism and comment prongs of the fair use analysis. Moreover, the court found that there was no effect on the plaintiff's market, as defendants' target audience was not likely to include many readers of plaintiff's explicit magazine.

Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D.N.Y. 1996): The makers of a movie biography about Muhammad Ali used 41 seconds of a real boxing match filmed in their biography. The court found a fair use here as it was a small portion of film taken and the purpose was informational.

Cariou v. Prince, No. 11-1197 (2d Cir. 2013): Richard Prince, a painter, created a collage and various paintings using several dozen images from a photographer's book. The court found a fair use here, stating that to qualify as a transformative use, Prince's work did not have to comment on the original photographer's work and that in some instances, only the main subject of the photo was used. In this case, 25 of Prince's paintings and collages that incorporated photographs from Cariou's book were found to constitute as a "fair use," as the works were "new and different" and thus transformative. More specifically, the court stated the works "have a different character, give Cariou's photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou's." Prince's works were also several times the size of Cariou's classic photographs, though the court cautioned that merely modifying a work does not necessarily make it "transformative."

Religious Technology Center v. Pagliarina, 908 F. Supp. 1353 (E.D. Va. 1995): The Washington Post used three short quotations from the Church of Scientology texts posted on the internet. As only a small portion of the work was excerpted and the purpose was for news commentary, the court found it to be a fair use.

Cases Not Involving Fair Use:

Love v. Kwitny, 772 F. Supp. 1367 (S.D.N.Y. 1989): An author copied more than half of an unpublished manuscript to prove that someone was involved in overthrowing the Iranian government. The court did not find fair use as a substantial portion of the manuscript was taken (over half of the work) and the work had not yet been published.

Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc., 672 F.2d 1095, 1100 (2d Cir. 1982): A television news program copied a snippet (one minute and 15 seconds) from a 72-minute Charlie Chaplin film and used it in the news report about Chaplin's death. The court did not find a fair use in this instance, holding that the portions taken were substantial and part of the "heart" of the film.

Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997): A television station's news broadcast used 30 seconds from a four-minute copyrighted videotape of the 1992 LA beating of Reginald Denny. Here, the court did not find a fair use, stating that the use was commercial, took the heart of the work, and affected the copyright owner's ability to market the video.

Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997): An author mimicked the style of a Dr. Seuss book while retelling the facts of the O.J. Simpson murder trial in a book entitled The Cat NOT in the Hat! A Parody by Dr. Juice. This was deemed to not qualify as a fair use as the book was a satire, not a parody, the book did not poke fun at or ridicule Dr. Seuss, and merely used the Dr. Seuss characters and style to illustrate the events of the O.J. murder trial. Thus, the use was nontransformative and commercial in nature.

FOOTNOTE

This article is not intended to be and should not be treated as legal advice; it is not a substitute for securing the advice of legal counsel.

See generally 17 U.S.C. §§ 106, 504 (2006) (providing copyright holders with exclusive rights over original expression and penalties for individuals who violate those rights).

17 U.S.C. §§102(a), 201(a).

17 U.S.C. § 102(a)(1)-(8).

17 U.S.C. § 102(b).

See generally 17 U.S.C. § 304.

Id.

17 U.S.C. § 304(b)-(c); see generally, Copyright Protection: What it is, How it Works, Stanford University Libraries' Copyright & Fair Use, 2005-2016, available at http://fairuse.stanford.edu/overview/faqs/copyright-protection/.

Copyright Protection: What it is, How it Works, Stanford University Libraries' Copyright & Fair Use, 2005-2016, available at http://fairuse.stanford.edu/overview/faqs/copyright-protection/.

17 U.S.C. § 105.

Copyright and Fair Use: A Guide for the Harvard Community, HARVARD UNIVERSITY OFFICE OF THE GENERAL COUNSEL, May 31, 2016, available at http://ogc.harvard.edu/pages/copyright-and-fair-use (hereinafter "Harvard Guide"); see also, Harper & Row, Publishers, Inc. v. Nation Enters. , 471 U.S. 539, 558 (1985) ("By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas.")

17 U.S.C. § 106; see also, The Society for Cinema and Media Studies, Statement of Best Practices for Fair Use in Teaching for Film and Media Educators, CINEMA JOURNAL 47, NO. 2, WINTER 2008, available at http://cmsimpact.org/wp-content/uploads/2016/03/scms_teaching_statement_-_20.pdf (hereinafter "The Society for Cinema and Media Studies Statement for Teaching"); Harvard Guide, supra note 10.

It is worth briefly noting that there are other defenses to allow for certain uses of protected works that do not infringe copyright holders' rights, such as the exception for face-to-face teaching. However, this best practices guide will focus on addressing the defense of fair use as that is the most common defense to arise in the face of potential litigation.

17 U.S.C. § 107; see also, The Society for Cinema and Media Studies, Statement of Fair Use Best Practices for Media Studies Publishing, available at http://www.cmstudies.org/resource/resmgr/fair_use_documents/scms_publishing_statement.pdf (hereinafter "The Society for Cinema and Media Studies Statement for Media Studies Publishing"). Note that a defendant must prove fair use as an affirmative defense. See e.g., Campbell v. Acuff-Rose Music, Inc. , 510 U.S. 569, 590 (1994); Harper & Row, 471 U.S. at 561; Video Pipeline, Inc. v. Buena Vista Home Entm't, Inc. , 342 F.3d 191, 197 (3d Cir. 2003).

17 U.S.C. § 107; see also, Stewart v. Abend, 495 U.S. 207, 236 (1990) (The fair use doctrine "permits courts to avoid rigid application of the copyright statute when, on occasion, such application would stifle the very creativity which that law is designed to foster.").

17 U.S.C. § 107(1)-(4).

Id.

See Ty, Inc. v. Publ'ns Int'l Ltd., 292 F.3d 512, 522 (7th Cir. 2002) ("The important point is simply that, as the Supreme Court made clear...the four factors are a checklist of things to be considered rather than a formula for decision; and likewise the list of statutory purposes."); see also William F. Patry & Richard A. Posner, Fair Use and Statutory Reform in the Wake of Eldred, 92 Cal. L. Rev. 1639, 1645 (2004) ("All section 107 really amounts to in practical terms is confirmation that the courts are entitled to allow in the name of fair use a certain undefined amount of unauthorized copying from copyrighted works. This may seem an unsatisfactory solution to the problem of defining fair use, and indeed the uncertain contours of the defense raise serious problems …").

17 U.S.C. § 107(1); Harvard Guide, supra note 10.

Campbell, 510 U.S. at 579.

Harvard Guide, supra note 10. Note that the general focus of the inquiry is regarding what was taken from the plaintiff's work, not on how much of the defendant's work is comprised of copied material. See Harper & Row, 471 U.S. at 565 (quoting Sheldon v. Metro-Goldwyn Pictures Corp. , 81 F.2d 49, 56 (2d Cir. 1936)). However, if a large amount of the infringing work is copied material, the court may infer that the copied work is qualitatively substantial. Id.

See Pierre N. Leval, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1105 (Mar. 1990) (arguing that the key factor in fair use analysis is whether the use was "transformative.").

17 U.S.C. § 107(1); See, e.g., Bill Graham Archives v. Dorling Kindersley Ltd. , 448 F.3d 605, 608-09 (2d Cir. 2006); Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 800-01 (9th Cir. 2003).

Harvard Guide, supra note 10.

Id.

17 U.S.C. § 107(2).

Harvard Guide, supra note 10; See, e.g., Bill Graham Archives, 448 F.3d at 612 (2d Cir. 2006).

The Supreme Court in Harper & Row stated that an author should retain control over the initial dissemination of a work, and thus, unauthorized uses of unpublished works are less likely to be deemed fair. Harper & Row, 471 U.S. at 553. The Court appeared to create a presumption against fair use in the case of unpublished works; however, in 1992, Congress responded to concerns expressed by the publishing industry by emphatically declaring that unpublished works should not be entitled to a conclusive presumption against fair use. See Act of Oct. 24, 1992, Pub. L. No. 102-492, 106 Stat. 3145 (codified at 17 U.S.C. §107 (2000)). Consequently, this second factor does not tend to sway the fair use analysis outcome significantly. See, e.g., Bill Graham Archives, 448 F.3d at 612 ("We recognize, however, that the second factor may be of limited usefulness where the creative work of art is being used for a transformative purpose.").

17 U.S.C. § 102(b).

The Society for Cinema and Media Studies Statement for Teaching, supra note 11.

17 U.S.C. § 107(3).

Harvard Guide, supra note 10.

Id.

17 U.S.C. § 107(4).

Harvard Guide, supra note 10; see e.g., Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132, 145-46 (2d Cir. 1998) (finding that even if the copyright owner would not take advantage of the market, the fact that he/she could weighs against fair use); Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 930-31 (2d Cir. 1994) (holding that since the licensing of individual articles was available within the industry, the potential license fees could be evidence of market harm).

The Society for Cinema and Media Studies Statement for Teaching, supra note 11.

Harvard Guide, supra note 10.

Id. In Harper & Row, the Supreme Court stated that the fourth factor is "undoubtedly the single most important element of fair use." Harper & Row, 471 U.S. at 566. The Court subsequently backtracked from that statement, emphasizing again the case-by-case analysis of the doctrine and holding that no single factor is uniformly entitled to privileged status in fair use analysis. Campbell, 510 U.S. at 577-78. Nevertheless, some lower courts still seemingly continue to follow the dictum under Harper & Row. See e.g., Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 110 (2d Cir. 1998) (noting the post-Campbell lower court inconsistency in treatment of the fourth factor); Mulcahy v. Cheetah Learning LLC, 386 F.3d 849, 854 (8th Cir. 2004); Bond v. Blum, 317 F.3d 385, 396 (4th Cir. 2003).

Harvard Guide, supra note 10.

17 U.S.C. § 107(1)-(4).

Id.

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