Copyright and Fair Use Law – Qessays

[…] Is It Fair Use? 7 Questions to Ask Before Using Copyrighted Material, by Brad Frazer – “Authors create copyrights when they express their ideas into or onto […]

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While copyright law makes it technically illegal to reproduce almost anynew creative work (other than under fair use) without permission, if thework is unregistered and has no real commercial value, it gets very littleprotection.

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That is why custom and practice are very important in making fair use user-friendly. If you know how people in your situation usually interpret fair use, these calculations are easy in the most familiar cases—in the situations most people are going to encounter routinely. This is why in some fields, professionals have created codes of best practices in fair use, to identify those common situations and the reasoning they believe responsible professionals use to employ fair use in doing their work. The codes give you the reasoning for applying it to your kind of work, but give no specific rules. Codes stay within the logic of fair use and current legal interpretation, and permit you to use this expressive right in the same way you employ your First Amendment rights—with judgment according to the situation. And like your right to have a harshly critical position on public policy (up to the point of treason), to make references to sexual activity (up to obscenity), and to say terrible things about other people (up to libel), whether it is fair use or not depends on the context of your use.

Question DISCUSSION 1 Briefly describe copyright, public domain, and fair use. Provide a unique example of fair use. Provide an example of when copyright …

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Note from Jane: This guest post is by attorney has been updated to address reader questions and offer more information about fair use. Be sure to read his previous posts:

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In addition, while quite often people make incorrect claims of "fair use"it is a still valid and important concept necessary to allowthe criticism of copyrighted works and their creators through examples.

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PA: Millions of people use fair use every day in transformative works, most of them without knowing it. Scholars quote each others’ work. Journalists reproduce sections of reports in their coverage, and copy each others’ work in advancing the story. They capture sound from a protest march as protesters are singing a copyrighted song or one is blaring from speakers. Schoolchildren throughout the nation quote work from their textbooks in their papers, under fair use. People ridicule someone else’s work on social media, and reproduce it so that you can see what they are talking about. Bloggers show a selfie of themselves standing next to a copyrighted work they saw in a museum or gallery. So long as the use is in a different context, for a different purpose, and the amount is appropriately matched to the new use, generally they’re employing fair use.

114 Yale L.J. 535 (2004) Recent cases and scholarship have debated whether copyright law is consistent with the First Amendment. Much of the discussion has centered on copyright law's ability to suppress transformative, creative reuses of copyrighted works and on copyright's fair use doctrine as a mechanism to protect such transformative …

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[…] Frazer: Is It Fair Use? 7 Questions to Ask Before Using Copyrighted Material. Excerpt: “Authors create copyrights when they express their ideas into or onto a tangible […]

The legal standard for deciding what constitutes fair use of a copyrighted work involves examining and balancing the effects of four different relevant factors:

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PA: No. That is the whole point of fair use. You don’t ask permission; you just go ahead and use it. If the copyright holder had to agree, then they would have control over your product. They would then be in the position of being a private censor. And federal law would have enabled them to do that. That would be unconstitutional, because it would violate the First Amendment, which bans government action to inhibit free speech. Courts have demonstrated great support for this concern for constitutionality, in relation to fair use.

An exhaustive compendium of guidelines, case studies, and references to the appropriate application of fair use and copyright law for filmmakers.

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PA: The law doesn’t require a highly precise calculation, but a good-faith one. If your use seems close to simply offering a copyrighted work for free, with no added value, then you’re substituting for the original market for the work (even if the work doesn’t seem to you to be particularly valuable), and it would be beyond fair use. This is a judgment call, but it’s the kind you’re making every day with your other expressive rights.