So far, we've looked at copyright and ways to legally work within a rightsholder's rights. Now, we're going to turn our attention to one of the most confusing aspects of copyright law: the Fair Use Doctrine. Under Fair Use, copyrighted material may be used under certain conditions for a specific set of reasons without requiring the copyright holder's permission or procuring a license.
To be eligible for Fair Use protection, copyrighted material must be copied verbatim, and only used for criticism, comment, news reporting, teaching, or research. In each case, the use must be limited and transformative. For example, creating a parody or satire where the purpose is criticizing or commenting on a given situation can potentially be protected by Fair Use as it transforms the work by providing commentary. Using someone's music in a YouTube video cannot because it in no way transforms the music, nor is it a limited use of the music.
If the material is being used in an acceptable ways, then other considerations come into play. The purpose of the copying material and the nature of the copyrighted work are taken into consideration. The amount of the original work used in the copying work is considered. And the effect of the existence of the copying work on the marketability of the original piece is looked at, including the author's right of first publishing in cases where the copied work is unpublished.
There are four components of the Fair Use Doctrine. We'll go over each in more detail.
* The Purpose and Character of Use
* The Nature of the Original Material
* The Proportion of Original Work Used
* The Economic Impact on the Original Work
The Purpose and Character of Use
When we talk about purpose and character in this context, what we're really talking about is the purpose the copyrighted material is serving in the new material, and whether or nor the new use brings a new meaning to the copyrighted material.
Ideally, this criterion is designed to protect legitimate uses of copyrighted materials in news reporting, research, and teaching, situations where a verbatim copy might be necessary for accuracy or citation purposes and as such, could be seen as not infringing on the original's copyright. But even scholarly and nonprofit groups using copyrighted material can find themselves running afoul of the Fair Use Doctrine if all they are doing is copying without bringing any sort of commentary or transformative use to the original material. It is interesting to note that you can quote a source verbatim with all of the appropriate citation conventions, and still violate the source material's copyright.
Those incorporating copyrighted material into commercially available projects can fall under the Fair Use Doctrine if they follow all of the rules, but historically they have had a more difficult time securing that protection because the new project has the potential to affect the original material's market impact (we'll look at this later in this chapter). If the creator can prove that they are using a copyrighted material in a transformative manner that conforms to the Fair Use criteria, then they do have a chance of gaining that protection.
The Nature of the Original Material
The second criterion for the Fair Use Doctrine concerns the nature of the work. The new work, that is. Why is it being created? How will this new material be used? These are important questions in establishing whether or not something is protected by Fair Use.
Is this new material being created for factual purposes, like research or teaching, or is it being created for artistic reasons, like adaptations or remixes? Historically, new materials being created for factual purposes have legally secured the right to use copyrighted material under Fair Use more often than material being created for artistic reasons. It's easier to see and understand when something is being used in a limited, factual manner than when it is being used in a broad or creative manner.
If the material, factual or creative, is intended to be consumed, like workbooks, then it is not protected by Fair Use, and the creator has to go through licensing channels if they want to use the material. If the source material is unpublished, then the author's right of first publishing comes into play and it becomes much harder for the creator of the new material to prove Fair Use.
The Proportion of Original Work Used
The third criterion of the Fair Use Doctrine involves the amount and substantiality of the copyrighted material used in the new material. As is so often the case, there is no hard and fast rule on this. There's a lot of conflicting information out there, but the law has no established limit to how much is "too much". Obviously, if you use the entire copyrighted work, you need a license or legal permission. If you only use some portion, then courts will review how much of the original copyrighted work you are using against how you're using it and why you're using it.
People try to claim "points of difference" (enumerating the ways your work deviates from the original), but there's no actual law supporting that. If you find yourself trying to argue points of difference in your work, stop. The only reason someone does that is because they know they're in the wrong and trying to assuage their guilt. Your best options are to make right what you know is wrong, or to drop it and move along.
Substantiality is a bit more challenging, and not just because that's a hard word to say...or type out, for that matter. What's really being looked at here is how important or significant the selection from the original copyrighted material is to the whole. If your material incorporates the most important or significant parts of the original, you've created a situation that threatens the original's market value. If someone can see the best parts of the original in your new creation, why would they need to see the original? You've effectively spoiled it for them.
The best advice I can offer here is: If your gut is telling you you're doing it wrong, you probably are. Stop. Take a step back from your work. See if there's another way to accomplish your goals without violating someone else's copyright and without trying to turn yourself into a whiny victim.
The Economic Impact on the Original Work
The fourth, and final, criterion of the Fair Use Doctrine is typically the make-or-break point for whether or not a new creation will be granted Fair Use protection. And for good reason. It looks at how the new material impacts the earning power of the original material. Basically, if your new creation will seriously impede the original creator's income, Fair Use is no longer part of the equation.
For someone in a reporting or scholarly position, it's easy to convince yourself your noble work will not affect the original creator's sales. You may even tell yourself that your work will bring the original copyrighted material to more people's attention, and therefore you're really just doing some free marketing (even if you yourself are profiting off the new creation). This isn't much different than the points of difference conversation; you're lying to make yourself feel better about doing something you know you shouldn't be. If your reporting, reviewing, or scholarly presentation fails any earlier criterion, then it most likely will fail on this one, too.
That said, you can pass on every other Fair Use count, but fail here. Copyright exists to protect the copyright holder, and so does Fair Use.
Unfortunately for creators, courts look at the amount and significance of content used in new material, not the tone. That means someone can write a negative review of the copyrighted material, using non-significant clips to make their point, and not violate the original material's copyright. (It often amazes me how many authors don't understand that difference, and how many book reviewing sites bow to authors' ignorance on this point.) While the negative criticism may adversely impact future sales, the criticism itself does not necessarily infringe on copyright. I can't say that loudly enough.
Conclusion
Fair Use is not easy to prove for a very good reason. If you're unsure, check out these outstanding resources:
What is Fair Use? | Stanford University Libraries: http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/
What is Fair Use | Columbia Copyright Advisory Office: https://copyright.columbia.edu/basics/fair-use.html
Finally, BYU has a Fair Use checklist (http://files.lib.byu.edu/copyright/Checklist_for_Fair_Use.pdf) that does a pretty fair job of helping those incorporating copyrighted materials into their own work sort out what is most likely Fair Use and what isn't. Even if you're feeling pretty confident, take advantage of this great resource!
In the last section of the basic copyright issues, we'll cover the Creative Commons, a nearly twenty-year-old program designed to give creators and rightholders a way to share their works in a remix culture.