How Fair Is Fair? Copyright Law and Fair Use
Originally, copyright laws were meant to protect people in creative fields from intellectual property theft. The judicially-added “fair use” concept allows for the honest exchange of words, music and images for the good of the artistic community and the culture at large.
Copyright law gives artists and writers the right to claim exclusive ownership of their original literary, dramatic, musical and artistic creations; to profit from sales or other uses of the work; and to demand compensation from anyone who uses the work in whole or in part in any context or for any purpose. Copyright protects an artist’s personal expression of concepts, but not ideas, concepts, systems or factual information in the work. So, for example, Gone with the Wind is protected as Margaret Mitchell’s story about the Civil War, but the concept of a Civil War novel is not protected, nor is the idea of a love story between a brooding hero and a spirited heroine, nor are historical facts.
As a copyright owner, you have the exclusive right to do and to authorize others to: a) reproduce the work in copies or sound recordings; b) prepare derivative works based on the original; c) distribute copies to the public by sale or rental, lease or loan and perform or display the work publicly via live or digital transmission, including images from a motion picture or other audiovisual work.
The fair use principle describes exceptions to general copyright law and limits these rights. Fair use allows users to copy portions of a work in a review for purposes of illustration or comment or to quote short passages in a scholarly or technical work, in order to illustrate or clarify the user’s observations.
Journalists may also quote speeches or articles. They may transmit images or sounds associated with a work in or near a newsmaking event. Libraries may reproduce portions of a book to replace missing or damaged pages, and teachers or students may print small parts of a book or essay to illustrate a lesson. Parody is also fair use.
For moviemakers, the issues of fair use most often involve addition of music to a video, reproduction of video images from other films and/or use of dialogue from other works. Courts consider and balance four factors in determining the fine line between fair use and copyright infringement.
Factor one is the nature of the work in question. Factual works are more likely than creative to pass the fair use test.
The second factor is the purpose and character of the use, especially whether for commercial or non-profit educational purposes. E.g,, De Beers runs a diamond ad with a song by Landon Pigg, a relatively unknown musician. Clearly, the music helps De Beers sell its products, so it may use the music only with the artist’s permission. However, teachers who use the song to teach marketing students about using sentimental music to lure buyers, or to teach music students about melody lines and phrasing, probably wouldn’t need permission to copy.
The third factor is the amount and substantiality of the excerpted work in relation to the whole work. Landon Pigg’s song runs for several minutes and has 225 words. De Beers uses about 5 seconds and a mere 42 words, but that is enough to convey the tone and meaning of the recording. Even a casual listener can walk away humming the melody, and so, again, permission is needed.
The fourth factor is the potential effect the use will have on the value or potential market for the work. You could argue that Landon Pigg is getting free exposure from the ad. But say an unscrupulous hacker were to download the song and make copies to sell for a quarter apiece. People who have heard and like the song but are unwilling to buy a whole CD might pay the hacker a quarter, thus reducing the economic value of Pigg’s creation and causing him to lose money.
Even if you believe your use of material is fair use, be safe and get permission, which often costs little or no money. Acknowledging the source is not enough. So do the research, write the letters and get approval, if possible, from the copyright holder of any work you want to use. This can save you time, money and headaches. When in doubt, consult a copyright attorney.
There’s no need to get permission to copy items in the public domain. The complicated issue of how long a copyright lasts might be a future topic. To read more, check out www.copyright.cornell.edu/public_domain. [See also this issue’s In Box, page 6.]
For now, here’s the rule: anything created after January 1, 1978 is protected by the Copyright Act, even if it hasn’t been registered in the U.S. Copyright Office, for the author’s life plus 70 years. (For multiple creators, it’s the date the last person dies plus 70 years.) For a “work made for hire” by a company or corporation, or if the creator’s date of death is unknown, copyright term is 120 years from creation.
Attorney Mark Levy specializes in intellectual property law. He has won many amateur moviemaking awards. Gina Gullace is Levy’s research assistant & editor of the Amateur Movie Makers Association’s AMMA Monitor.