Understanding Copyrights: Part 2 - Fair Use
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Some argue that Fair Use provisions are clear, they are not. The provisions which exist are by their very design, purposefully vague. If you rely on popular opinion as your basis for determining if your use meets the legitimate criteria for Fair Use, chances are, you will find yourself on the wrong side of the law and subject to litigation.
And when I say litigation, understand that the courts are usually very aggressive once a case comes before the courts and an average settlement is usually in the $150,000 range and up for each infraction in cases of willful infringement. Claiming ignorance of the law will offer you no excuse, nor will ignorance shield you from the fines imposed under the law. And you can add to these costs, your attorney's charges. With fines like these, it's simply safer to not play in minefields.
Why is Fair Use such a mine-field? Let's look at what it is and what it isn't...
Users in green (in the above paragraph) find latitude and flexibility in the law, though even they do not have guaranteed rights to copyrighted material under Fair Use provisions. And contrary to popular opinion, nonprofits, educational and personal use are not the most apt to be protected under Fair Use laws. The uses most likely to be protected are those used outlined in blue above. Users in red, need to be especially careful about trying to claim Fair Use in regards to copyrighted materials -- this, as commercial users will nearly always lose any claim to Fair Use.
When the Supreme Court ruled that the "transformative factor" was critical to substantiating Fair Use. If you used copyright material under a claim of Fair Use, did you transform it in some way and add meaning or insight previously not available in the original version?
If you are claiming Fair Use when using materials from a factual source such scientific works or biographies or other such fact-based works, you have a far greater chance of claiming Fair Use than if you were to use materials from an original work like a screenplay, a song or a TV show.
The intent of this clause is to protect the public's right to knowledge and factual works that benefit the public, while protecting the rights of those whose works are copyrighted due to the original work that is placed into these works.
Oddly, you have less chance of claiming Fair Use in the case of unpublished works than you do in the case of works which have been previously published. If you know of a work that is not yet published and you use it, you will almost always fall prey to copyright infringement should the original author have means and proof that the work is originally their own. This, as the courts recognize the author's rights to pick the first public display of their work.
The courts also recognize that the "essence" of a work may be a very small part of a copyrighted work and will likely protect the copyright holder's rights should you try to use that essence in your own work. Musicians call the memorable recurring passage the "hook" and writers may call the most important phrasing in their book, the "hinge" as the story turns on this small item -- using the "hook" or the "hinge" (while it may constitute a very small part of the whole) is likely to lead to trouble. The exception to this rule is in the case of parody, which the courts have protected.
This very kind of case was ruled on by the courts who ruled against a sculptor who used a copyrighted photograph as the basis of their work. In another case, an animator ran afoul of the law when they used a story as the basis of their work without the author's permission.
The courts tend to be more lenient, though it is not always the case (and so it is always best to seek permissions) in the case of works that are out of print or are not available. They also tend to be more lenient in cases wherein the copyright holder is not known or after certified attempts to find them, cannot be found.
Only after ascertaining the legitimacy of the first three points will the courts then weigh the fourth question:
After weighing points one through three, then they will consider the fourth point. If points one through three show that you are legitimately using a copyrighted work under Fair Use, then in most cases, even in those wherein point four may show some financial damage, the courts will more than likely not throw out the weight of evidence of the first three points in favor of going with the fourth point of law. But if points one through three show that your use is not in accordance with the principles that underscore the true intent of the Fair Use provisions, then they will use point four to consider the scope and amount of damages.
Still in doubt? Ask for permission.
...oh, and seek legal advice -- as I said in the disclaimer at the beginning of this article, I'm no lawyer and this is not intended to be the last word on the subject or to be taken in lieu of legal counsel. This is merely to give you some sound basics in understanding that Fair Use provisions of the law are not as simple as many claim when posting to the Creative COW forums and elsewhere.
I hope that this helps.
-- Ron Lindeboom
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