# Copyright Basics

## The Fair Use Defense


### Learning Objectives

After completing this section, you will be able to
1. Understand the nature of fair use and how it serves the public interest.
2. Appreciate the continuing debate over just vagaries in what is considered fair use.

### Is It Fair Use or Infringement?

Before reading this section, please watch the overview video below covering Fair Use is an enigma—indeed, no one even knows how many words of a copyrighted work one can legally copy as “fair use.” Here, at last, is everything you need to know about Fair Use.
Title 17 of the United States Code allows the copying and use of copyrighted material for specific
      purposes—including criticism, comment, news reporting, teaching (involving multiple copies for classroom use), scholarship, or research. The statute also describes four
      factors
      that draw on the precepts first discussed by Supreme Court Justice Story 150 years earlier to determine if the use of a copyrighted work is infringement or “fair use.”
        17 U.S.C., § 107 Retrieved from
        http://www.law.cornell.edu/uscode/text/17/107.
      
    
Based on these factors, which are not meant to be all inclusive, a judge must determine if the use of copyrighted material is within the bounds of fair use. What makes that determination sometimes difficult is the challenge of
      weighing a variety of purposes—was the work used for criticism, comment, news reporting, teaching, scholarship, or research?—in concert with various factors (such as how much was used, and whether it was for commercial gain or not).
In the crucial 1973 Supreme Court case of
      
        , for example, the divided justices affirmed a lower U.S. Court of Claims decision that the benefits of freely distributing photocopies of medical journal
        articles to nonprofit government research libraries outweighed the reduction of potential revenue to the publisher of those journals.
        
    

### Parody

One of the purposes for which copyrighted work may at times be freely used is parody. As a federal court ruled in one 1993 case:    
And the greater the “transformative” nature of the new work, the less likely it infringes the original work.
A case involving the Fox TV show
      Family Guy
      illustrates the point. In
      
        , the court found that a Family Guy episode in which the character Peter Griffin sang a revised version of the song “When You Wish Upon a
        Star” called “I Need a Jew” was a parody and thereby a fair use of the original material. The outrageous if not offensive visuals and words employed in the
      Family Guy
      parody were so substantially different in character and form from the original use of the song in the Walt Disney movie
      Pinocchio
      that no one could ever confuse the two or fail to realize that Fox’s use was a parody.

### Transformative or Theft?

A very interesting case involving fair use was decided by the U.S. Court of Appeals for the Second Circuit on April 25, 2013. It overturned a 2011 district court ruling that artist Richard Prince had acted
      illegally by using another artist’s photographs to create a series of collages and paintings. Such borrowing of another’s work is considered fair use only if it is “transformative” in some substantial way, and the district judge held that it was not because the collages did not comment on the original work explicitly. The federal circuit disagreed, holding that explicit references to the original work are not required so long as the required “transformation” is manifested by “an entirely different aesthetic” in the secondary work.
According to the appeals court:

### Fair Use for Public Good

The fair use clause also allows libraries and archives that are open to the public, or researchers in a specialized field, to use copyrighted materials for the purpose of preservation and security of the material or as a deposit for research. These libraries and archives can keep up to three copies of a copyrighted work, but a copyright notice must be included on each copy. Libraries and archives will not be held liable for “unsupervised use of reproducing equipment located on its premises” if there is a notice on the equipment that a copy may be subject to copyright law.
        17 U.S.C. § 108 Retrieved from
        http://www.law.cornell.edu/uscode/text/17/108.
      
      Any use of photocopied copyrighted materials must be specifically for private study, scholarship, or research, and any other use constitutes infringement. Photocopying copyrighted materials in a business setting is also infringing if used outside of
      research.
Academic institutions also are protected by specific rules regarding fair use, pursuant to an agreement between representatives of the publishing industry and of academic institutions negotiated in the 1970s. The photocopying of a
      copyrighted work for the classroom is permitted if it is limited to:
      
        
      
        Library of Congress. (2009, November). Reproduction of Copyrighted Works By Educators And Librarians. Retrieved from
        http://www.copyright.gov/circs/circ21.pdf.
      
    
But even in the above academic uses, limitations apply regarding the size of both the audience and the content to be copied. For example, teachers may photocopy works only for students enrolled in the class. The photocopied
      material must also pass brevity, spontaneity, and other tests. “Brevity” means no more than 250 words of a poem, 2,500 words of a prose work, or 10 percent or 1,000 words of an excerpt of a prose work may be used. In addition, the decision to photocopy the material must be spontaneous; the photocopied material must be used only for one course and one class term; no more than one poem, article, story, or essay—and no more than two excerpts—may be copied from the same author; and such bulk photocopying must be limited to nine instances per class during one term.
      Derived from The President and Fellows of Harvard College. (2008).
        
    
Finally, copyrighted works may not be photocopied and used in educational settings as a substitute for required texts, photocopies may not be mandatory, and you cannot charge for the photocopied work (although you may recoup the costs of photocopying).
        Copyright Law Revision (House Report No. 94-1476) Retrieved from
        http://uscode.house.gov/download/pls/17C1.txt.
      
    