WHAT’S “FAIR USE”?

"The Copyright Act permits the “fair use” of portions of others’ work for teaching, news reporting and other desirable purposes. Although the Copyright Act never defines “fair use,” Section 107 of the Act lists four factors to consider in determining whether a use is fair:

• The purpose and character of the use. Certain uses, such as nonprofit educational use, non-commercial research, news reporting, criticism, satire and parody, receive wider latitude for copying. The key issue is whether the use is “transformative”—that is, as the Supreme Court wrote concerning 2 Live Crew’s “Oh Pretty Woman” parody song, whether the use transforms the original work into a new creation “with a further purpose or different character.”

• The nature of the copyrighted work. Fiction receives greater protection than nonfiction. This makes sense given that a main purpose of copyright is disseminating information to the public. Although unpublished works are also subject to fair use, the courts are very solicitous of the right of “first publication,” so any copying or paraphrasing should be done with caution.

• The amount and substantiality of the portion used. A few cases have allowed an entire work to be copied (including the Supreme Court’s Betamax case, which allowed the recording of broadcast TV shows for later home viewing and which was recently clarified by the Supreme Court). But generally, if the user copies the critical heart of the work, this will often be considered unfair even if few words are copied. For example, one case held that copying less than 1 percent of the copyrighted letters of Julius and Ethel Rosenberg was potentially unfair.

• The effect of the use upon the potential market for or value of the copyrighted work. Courts view this as the most critical factor. Quoting substantial portions of a work, such as the lines of a poem, provides the work to others without paying the author. On the other hand, creating a parody of the poem probably won't diminish the market for it and so may be deemed fair use.

Some experts recommend that authors trying to decide whether their use of another writer's work is fair should apply the Golden Rule: If you'd be upset to find your work used this way, it's probably unfair. But different copyright owners tolerate different amounts of copying, so when in doubt, it's safest to seek written permission." By: Howard G. Zaharoff