THE OFFICE FOR SCHOLARLY COMMUNICATION PRESENTS: FAIR USE Made for the Harvard Community ---- Inspired by the Harvard Office of General Counsel's "Copyright and Fair Use: A Guide for the Harvard Community (http://ogc.harvard.edu/pages/copyright-and-fair-use) Fair use provisions of the copyright law allow use of copyrighted materials on a limited basis for specific purposes without requiring the permission of the copyright holder. Below we will detail the current state of the law, including the four factors, transformative uses, and cases for reference. I. INTRODUCTION: WHAT IS FAIR USE? Fair use is an exception to copyright. One of the most famous, yet the least clear, of all the copyright limitations in the Copyright Act, is the doctrine of fair use. Under fair use, you may use copyrighted material without permission. The doctrine itself was rooted in both English and U.S. caselaw, but was eventually codified in the Copyright Act. The source of fair use law is statutory: Section 107 of the Copyright Act provides for fair use of a work for purposes such as: - criticism and commentary, ex. quoting a few lines from a book in a book review; - teaching, scholarship, and research, ex. copying a few paragraphs, with citation, from a news article for use by a professor in a class; - news reporting, ex. replaying a small part of a taped concert in a news segment about the artist's performance. II. FAIR USE: WHAT IS THE LAW? 17 U.S.C SECTION 107 The four fair use factors help determine if your potential use is fair. - Factor 1: Purpose "Purpose & character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes" Favors: Nonprofit, educational, scholarly or research use or a "transformative use" (see transformative fair use section below for more information on transformative uses) - Factor 2: Nature "The nature of the copyrighted work" Favors: Published works over unpublished works Creative works have more protection than factual ones; the more creative a work, the less likely the use will be considered fair. - Factor 3: Amount "Amount & substantiality of the portion used in relation to the copyrighted work as a whole" Favors: Small or less significant amounts or using only the amount needed for a given purpose. Both a quantitative and qualitative factor. - Factor 4: Market "Effect of the use upon the potential market for, or value of, the copyrighted work" Favors: Not possible to obtain permission or there is little to no market effect. If licensing permission exists for the use, this may lean away from a fair use. III. TRANSFORMATIVE FAIR USE: DEVELOPING LAW What is a transformative use? "A work is transformative if, in the words of the Supreme Court, it "adds something new, with a further purpose or different character, altering the first with new expression, meaning or message." Quote from Justice Souter in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). The full case is available at http://www.law.cornell.edu/supct/html/92-1292.ZO.html IV. TRANSFORMATIVE USE IN THE COURTS Courts occasionally boil down the 4 fair use factors to 2 questions: 1) Does the use transform the material, by using it for a different purpose? 2) Was the amount taken appropriate to the new purpose? V. FURTHER EXPLANATION: QUESTION #1, transforming the material for a different purpose Including Grateful Dead posters in a book on the illustrated history of the band without permission of the artists was found to be a transformative fair use: "[T]he images placed in chronological order on a timeline is transformatively different from the mere expressive use of images on concert posters." Quote from Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006). The full case is available at https://www.law.berkeley.edu/files/Bill_Graham_case.pdf Poster's original purpose: concert promotion, ticket sales, and artistic expression. Poster's new purpose: transformative, educational, scholarly use on a timeline representing the history of a music subculture. Transformative uses are defined "in context". The use of the copyrighted material must be necessary to the use. Aesthetic, artistic, or "window dressing" uses are NOT transformative uses. For example, use of copyrighted material (such as a quotation, image, video clip, or music clip) may be transformative if: - Subject to Scholarly Analysis and Critique: The copyrighted material is the subject of the author's or instructor's analysis, clearly critiquing or explaining the material in depth. - Illustrating an Important Point: The copyrighted material illustrates a compelling point or makes it more comprehensible in a written paper or presentation. - Re-Purposed for a Significant Teaching Point: The copyrighted material is being re-purposed to significantly advance the author's pedagogical point. VI. FURTHER EXPLANATION: QUESTION #2, was the amount taken appropriate to the new purpose? The extent of permissible copying varies with the transformative purpose of the use. Sometimes it is necessary to copy entire works; however, only use what is absolutely necessary. Use of copyrighted images displayed on web sites by the operator of a visual search engine, which displayed search results as "thumbnail" pictures, was "fair use" of copyrighted images. See Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003). The full case is available at http://scholar.google.com/scholar_case?case=13767420941977220880&q=336+F.3d+811&hl=en&as_sdt=2002 Use no more than you reasonably need to make your point. It should be readily apparent how the portion you have taken supports the point you are making. If you can reasonably make your point with less of the third-party material, you should use less. To aid a fair use, use only smaller or shorter portions of the copyrighted material. The smaller the portion of the third-party work you use, the stronger your fair use analysis. While it may be necessary to use the entire work to make your point (see above), and courts have upheld use of the entirety of copyrighted materials in appropriate circumstances, the use of smaller or lower-resolution images aids a finding of fair use. VII. FINAL THOUGHTS Fair use is ultimately a balancing test. - To determine whether a use is or is not a fair use, always keep in mind that you must weigh all four factors, and apply the transformative fair use questions. - You must evaluate each use of copyrighted material individually. Not all uses will be fair, but the system is designed to allow a great deal of flexibilty for new uses of copyrighted material. - Only include copyrighted material where there is a reasonable fair use basis. Apply fair use prudently, and manage risk sensibly. VIII. FURTHER QUESTIONS OR GUIDANCE? Ask the Copyright First Responders (CFR) About the CFR: The mission of this service is to establish a culture of shared understanding of copyright among Harvard faculty, students, and staff in support of pedagogy, research, and innovation. Embedded in each library, archive, or department, Copyright First Responders will develop information expertise, create a collaborative network of support among their peers involved with copyright issues, both locally and across the library, and serve as a resource for the Harvard community by answering copyright questions and sharing critical knowledge. Copyright First Responders Wadsworth House 1341 Massachusetts Avenue Cambridge, MA 02138 http://tinyurl.com/CFRharvard