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Fair Useby Ellen Million
Copyright is the right assigned to all artists and writers at the moment they create something. But sometimes, there are cases when it is necessary and beneficial to use something that is copyrighted -- such as a quote -- to educate, or to share and help promote. This is something called 'Fair Use,' and is protected by section 107 of the copyright law. Very simply, sometimes it's fair to use other people's copyrighted work.
It's not so simple to figure out when it's fair, and when it's not. An artist may not want you to use their work at all, but someone who enjoys their work may think it's just fine to show it off to other people.
Legally, each case is decided on four points: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work.
Let's consider a few examples!
Google is scanning, character recognizing and indexing published books from a dozen major libraries as part of their new Google Books project. Some publishers and authors are suing them, saying that Google is infringing on their copyright because it is a commercial venture. Google protests that their project is beneficial, and protected by fair use.
Jane Fangirl copies a popular piece and posts it in her DeviantArt gallery with a note that it was "inspired" by the well-known artist. When someone tells her she's copied the piece and should take it down, Jane says that because she credited the artist, it's fair use.
The Associated Press is charging through a licensing service for the use of news material from their articles. They write a cease and desist letter to the Drudge Retort blog because the writer, Rogers Cadenhead, used a few sentences and headlines of AP material in some of his entries without paying through the license service. Although Cadenhead took the articles in question down, other bloggers protested that his method of use -- enormously common in the blogging community -- fell well within fair use.
Joe Fanboy saves images off the Internet into a folder on his computer. He later posts them on a free webpage so that other people can enjoy them, listing names where he knows them. His webpage has a lot of paid advertisements on it, and he adds new work frequently so that a lot of people will visit and he can make decent revenue. When artists express outrage, he writes back that he's giving them exposure and that it's fair use.
Purpose and Character of the Use
The first point -- the purpose and character of the use -- regards how something is being used, and specifically looks at whether it's for commercial ends. If you are copying a piece and selling it on t-shirts to make money, you will fail this section of fair use completely. The law does give a few specific examples of fair use.
These examples include excerpts of something for a review, quotations in a scholarly or technical work, parody, or summarizing something publicly printed or spoken. Part of a work may be shared by a teacher or student to illustrate a lesson, work from legislative or judicial proceedings may be reproduced, and it says specifically that if something is accidentally or incidentally caught on tape during a news report, it doesn't matter if something on the scene is copyrighted.
This list is not considered complete, and there are many other uses that have been determined to fall under fair use. What a court will do here is look at how the piece was used and see if the use was commercial, if it was deliberate, how blatant the use was, or if it was used with the intent to educate or criticize, rather than 'steal.'
From our examples, Google Books argues that their use is educational, allowing access and information from many otherwise lost publications to become easily found at their site. They further argue that they are summarizing the work and adding information to it, as well as promoting the original sources.
Jane Fangirl's use is a little less clearcut -- she has re-rendered the piece herself, and posted it as her own work. Her use of the word 'inspired' is perhaps not quite strong enough to explain the complete copying. It could be argued that her purpose in posting the copied work is not to increase exposure to the original artist, but to show off her own rendition of the work and increase her own popularity.
When Cadenhead quoted parts of an AP news brief and expounded on the issue with his own opinion and insight, he was using the original work as a jumping off point for his own creative material, giving his audience the appropriate background, and not claiming credit of the original.
Joe Fanboy, although he is not claiming credit of the pieces, is not creating his own content from the borrowed work; he has only collected it and shown it off.
The Nature of the Copyrighted Work
The copyright office makes a distinction between 'purely creative' work and 'factual' work. Although an article on a scientific subject is still subject to copyright, they consider that copying the content of such an article is more likely to be fair use because any sharing of it is educational by its very nature.
Google Books is sharing both fiction and non-fiction publications, work that is based on text, images and subjects that cover... well, their goal is everything. The nature of the copyrighted work they may be infringing upon is across the scale.
Jane Fangirl has copied a piece of artwork that is personal and unique to the artist. In doing so, she increased her own understanding of technique, perhaps, but there is nothing educational in the sharing of the work further.
An AP article is assumed to contain factual and educational information; that's rather the point of a news service. This work is far more likely to be available for fair use because sharing it is automatically educational.
Joe Fanboy has also not been diligent in documenting the artists, and he is not actually linking to any of them, so there is no actual benefit to the artists he's borrowed from. It's not a useful archive and does not offer educational use.
The Amount and Substantiality...
This section, completely listed as "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," is very commonly misquoted. Lots of people will say 10% or 30% or some other fictional number, but in truth, there is no hard and fast rule about how much of a piece you can copy and still be protected by fair use.
To use copyrighted content in a new creative piece, it must be transformed in some fashion. If the original piece is a photograph, and someone uses a basically unaltered copy of the photograph as the background to a character that they digitally painted, the question is not how much of their picture the 'borrowed' work entails, but how much of the original work they borrowed for their piece. In this case, they would be using the entire piece without making it their own in any way. Fail!
What courts look specifically at here is: how much of the original piece is it minimally reasonable to use for the purpose? Did you really need to quote seven pages of a novel to make your critical review? Could you have shared this piece of artwork using a thumbnail, rather than a full image?
Google Books can provide an excellent service by providing searchability and summaries of the book, even page previews, without making the full content of something under copyright available online.
Jane Fangirl copied all of the elements of her idol's paintings, except her face, and she changed the kind of flower the fairy was holding. There is still too much similarity in the pieces to claim that Jane's piece is unique -- the background is the same, the pose is the same, the lighting is the same, the color scheme is the same...
If Cadenhead had simply reposted the articles in entirety on his blog, the AP might have grounds to say that it wasn't fair use. But he was only using headlines and excerpts, and then appending his own related content.
If promoting artists was really his purpose, Joe Fanboy could easily have promoted their work by providing thumbnails with links to the artists' sites. He didn't need to provide large images. And if his aim was to be educational or to promote artists, he should have researched the artists who did the work so that he could list them all.
Effect of the use upon the potential market...
If someone's use of the copyrighted work is only going to drive traffic to the original author, promote the work in question or in some way benefit the original, it's hard to say 'that's bad, don't do it.' On the other side, if the use of the work is damaging to the original artist, or prevents or diminishes commercial use of the piece, it is definitely no longer fair use. This is the fourth category that the courts look at when they are determining fair use.
If Google Books allows download of an entire book, it could bypass the publisher's desire to sell the book. This was a major driving point of the lawsuit brought against them!
Jane Fangirl's use is probably not going to impact the original piece. However, if she has enabled customers to buy prints at the art gallery she has made an attempt to undermine the sales of the original artwork, and that would weigh against her if such a case went to court.
Cadenhead's use of the AP content directly conflicts with their desire to license that kind of use for a profit. The AP wants to charge between $7.50 for as few as 5 words quoted, up to $100 for every use of any quote from their material. However, it can be argued that AP's requirement that such use be paid is unreasonable and goes against all established understanding of fair use.
Joe Fanboy's use is also probably not going to affect the value of the originals. But if he has wording on his site that allows other users to copy and redistribute the artwork, the work could be spread further. That may even impact the artist's ability to get tag and tubing licenses with their work!
In the Courts
Jane and Joe are unlikely to ever get as far as a court. These are cases where the monetary value in question wouldn't be worth the legal fees and hassles. In general, a note from the artist to Jane or Joe would probably get the work removed, though the artist may need to go to the next step of contacting the host of the work -- either the gallery Jane was displaying in, or Joe's webhosting service. Such use is almost always against the terms of service.
Cadenhead's choice to take the quoted material down from his blog was based on his desire to stay out of the courts as well. There are not easily defined rights and wrongs in fair use cases, and if the AP were to win even such a small and insignificant case, it would set a precedent for further fair use. Cadenhead correctly said, "If AP were to go after some small fish and get a ruling that running two sentences of stories was copyright infringement, that would have a chilling impact across the net."
The AP also realized the implications of their decease notice, and have been taking steps to redefine their policy. They want to keep news services from using their content, but weren't willing to take on the entire blogging community. Cadenhead and the AP announced that they had 'settled' their dispute, but no details were published, and the blog entries in question remain offline.
Google Books also settled out of the courts, but they have published their settlement in great gory detail -- 323 dry, boring pages of it. The gist is that they have broken their book indexing system into three categories: out of copyright, copyrighted but out-of-print, and copyrighted and in-print. They are treating each category separately, and are respecting the publishers' desires regarding indexing and sharing. I won't try to sum it all up, but let Google do that for me: http://books.google.com/googlebooks/agreement/
Stay on the safe side
Clearly, the legalities of fair use are pretty tricky, and not even big companies are really sure where the line is drawn. There's a lot to consider, and a lot of pitfalls and confusion along the way. The best way to make sure that what you're doing is legal is simply to ask for permission, or follow the explicit directions that the artists have listed on their site. If Jane Fangirl or Joe Fanboy had politely asked the artists to allow their use, or followed their published directions, chances are good that the artists would have graciously allowed it, and everything would be aboveboard and legal. The artist may have particulars about how they wanted to be credited, or ask for a link back to their site, and it's not only polite to follow those guidelines, it would keep Jane or Joe out of trouble.
When in doubt, use your own work, and don't borrow or share anything without permission. Re-write and re-word information, and don't assume anything on the net can't be found by the person who originally came up with it -- this includes webpage code and FAQ text, too! Be clear about boundaries when you do feel like quoting something is appropriate, and credit everything you use very carefully. Keep it fair!
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