Fair Use is one of the most notoriously difficult areas in all of modern law and certainly one of the greatest gray areas looming in intellectual property law. By its very design, it’s meant to be handled on a case by case basis, looking at each incident of fair use on its own merit.
While this is certainly a noble concept, it makes it very difficult to determine what is or isn’t fair use before either copying a work or pursuing someone that has copied yours. Though many uses clearly fall either within or outside the bonds of fair use, the breadth of the gray area and the sheer interpretability of the law makes an outcome in such a case difficult to predict.
Nowhere is that more true than writers and artists that create small works or works not easily divisible. These works defy the traditional concept of fair use by producing a very simple quandary: Is it possible to duplicate an entire work and it be considered fair use even though convention states only a part can be used?
The answer is not simple, though the outcome winds up being pretty straightforward.
What the Law Says
United States copyright law offers four factors for determining if the copying of a work is to be considered fair use:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Theoretically, the reuse of an entire work would be stopped dead in its tracks by the third factor. One would assume that any use of an entire work, no matter how short, would fail the third test being not just a substantial portion of a piece, but the whole thing.
However, the supreme court has been very clear on this matter in saying that the factors can not be considered independently of one another, but rather, considered together. Just because a reuse seems to fail one portion of the fair use test does not mean that it can’t be classified as such.
This attitude is furthered by the fact that the intent of the law was not to prevent copying of shorter works, but rather, to ensure that those who did copy did not take more than what they needed. A teacher exploring Melville’s imagery doesn’t need to copy all of Moby Dick but a researcher putting together an paper on American haikus will most likely need to republish entire works, simply because they are too short to sectionalize. After all, two words from a Haiku are absolutely useless when discussing the work as a whole.
This concept of taking only what is needed, which is referred to what is “reasonably necessary”, means that works which can not be broken down in a useful way, be it due to brevity or structure, can be used as a whole.
If such a rule wasn’t in place, then no fair use would exist at all for such works and that would almost certainly erode the fair use principle for other kinds of work. Theoretically, one could have copyrighted smaller and smaller portions of material until there was no fair use at all.
It’s a scary thought that was well avoided, but it kicked the fair use debate to other, less neat areas.
Context Is King
Since the amount used is just one factor (and one that often doesn’t apply), the context of the use becomes much more important, especially since two of the four factors play right to it.
In that regard, uses related to education, news and criticism have priority over uses that are purely for commercial gain. Copying a work as a handout for a classroom is far less likely to land one in trouble than selling the same material in a book. What is often fair use in a classroom or even in a newspaper is copyright infringement elsewhere.
Since this site deals with plagiarism, attribution is also an element of the context of use. Plagiarized use is always looked as less favorable than fully attributed use and, personally, I’ve never heard of a case where plagiarized reproduction has been called fair use.
While attribution might not be a direct requirement of the fair use law, it seems to be assumed as much.
In the end though, the context of the use really boils down to the intentions of the person doing the using. Were they thinking of what’s best for society, the creator or themselves? How much was the person copying the work benefiting when compared to both the original author and the public at large?
Since the fair use doctrine is designed to weigh the needs of the public versus the needs of the copyright holder, that’s what one must do when deciding whether something is fair use or not. One must carefully balance what the creator is losing (or possibly gaining) versus how much society is benefiting.
It’s a complicated process that the courts themselves often have to settle, even most lawyers can’t tell you for certain which end is up on every instance. But most, when put in that light do become much clearer as to what direction they’ll head.
Though nothing is ever certain, it’s important we try as the implications are very clear.
While haiku poets, children writers and other authors of very short pieces are clearly the most directly affected, they aren’t the only ones.
First off, photographers and artists need to be on alert as several court cases have found that reusing just portions of photographs is impractical as well. This has become especially prevalent when newspapers print photographs that have been deemed newsworthy for one reason or another.
Also potentially at risk are bloggers, especially those that use a short and sweet posting style. They need to understand that it could be perfectly legal and acceptable for someone to lift an entire post for use in criticism or commentary (However, it is possible that a collection of such works could be viewed in a different manner).
Even though some bloggers have used a misguided notion of fair use to restrict legitimate reproduction of their works, it is not a power that’s recognized in the law nor has it been backed up by court cases.
This could change a great deal about the perception of copyright and fair use in the blogging world.
What Does it Mean
Truth be told, there’s nothing wrong with fair use. If done right, it benefits society and detracts very little, if any, from the copyright holder. In fact, it can even promote the original creator.
Still, those who are uncomfortable with others reusing their work need to take notice. Fair use applies to short works as well as long ones. Those who have no problems need to consider licensing their work under a Creative Common License or even the GPL to encourage such use.
For those wanting to reuse another’s work, just bear in mind that context is king and that, so long as you take only what is necessary, taking all of a shorter piece can be just as protected as taking only a portion of a long one.
Nonetheless, little is clear here and, if you have any questions about whether a use you want to engage in is legal or if someone else is infringing on your rights, you should talk with a good intellectual property attorney.
They’re the ones that can best guide you through these murky waters?
Anyone who is interested in this article should read David Giacalone’s very interesting article on Fair Use and Haiku Poems. It provided both the inspiration and much of the information for this article. It goes into much greater detail than I can here and cites court cases and other specifics. Definitely a must-read for anyone interested in this subject.
[tags] Plagiarism, Fair Use, Copyright Law, Copyright Infringement, Content Theft, Haiku, Poetry, Photography, Copyright[/tags]