Copyright
Law and the Fair Use Doctrine
By Keith E. Whann
Original works are afforded a great
amount of protection under the Copyright Act of 1976.
For instance, Section 106 of the Act grants the copyright
holder “exclusive” rights to use and to authorize the use of his
work. See 17
U.S.C. §106. However,
the copyright owner has never had complete control over all possible
uses of his work. §106
of the Act is subject to Sections 107 - 118 which describe a variety
of uses of copyrighted material that are not infringements of the
Act despite the provision of §106.
The “Fair Use Doctrine” is an affirmative defense which provides
that the fair use of a copyrighted work is not an infringement of
copyright. 17 U.S.C.
§107.
I. THE FAIR USE DOCTRINE
The
unlicensed use of a copyright is not an infringement unless it conflicts
with one of the specific exclusive rights conferred by the copyright
statute. Sony Corp. of
America v. Universal City Studios, 220 U.S.P.Q. 665, 681
(1984), citing Twentieth Century Music Corp. v. Aiken, 442
U.S. 151 (1975). One of the
exclusive rights of a copyright holder is the right to authorize the
preparation of derivative works based upon the copyrighted work.
17 U.S.C. §106(2). A
derivative work is defined as one “based upon one or more preexisting
works, such as translation, musical arrangement ... or any other form in
which a work may be recast, transformed, or adapted.
A work consisting of editorial revisions, annotations,
elaborations, or other remodifications which, as a whole, represent an
original work of authorship, is a ‘derivative work’”.
17 U.S.C. §101. Section
107, the legislative endorsement of the doctrine of “fair use” is one
of the various exceptions to the exclusive rights conferred by §106.
Section 107 provides four factors to be considered in determining
whether the use made of a work is a fair use:
1) the purpose and character of the use, including whether
such use is of 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.
There
are no “bright-line rules”, rather, each case raising the question of
fair use must be decided on its own facts after weighing all of the
factors. Sony Corp.,
220 U.S.P.Q. at 680-1, and n. 31.
The commercial or non-commercial nature of the work must be considered
but should not be a presumption of fair or unfair use. The
dispositive question is whether the work is “transformative”, i.e.
whether it “adds something new, with a further purpose or different
character”, or “alters the first work with a new expression, meaning
or message”. The purpose of the work is to be given considerable
weight. For instance, a parody that comments on the original
work, as opposed to copying the work merely to get attention, is
more likely to be viewed as having a valid defense under the fair
use doctrine.
The “nature of the copyrighted work” is given weight but is not a determinative
factor since most derivative works copy from well-known originals.
The “amount and substantiality of the portion used in relation to the
copyrighted work as a whole” should be considered in relation to
the purpose of the copying. As with a parody, any derivative
work that necessarily relies on the popularity of the original work
has to borrow enough to conjure up at least enough of the original
to make the derivative recognizable. After taking enough to
make sure the derivative is identifiable, how much more is reasonable
depends on how much of the original was taken, the overriding purpose
and character, the transformative elements, and the likelihood that
the work may serve as a market substitute for the original.
The “effect of the use upon the potential market for or value of the
copyrighted work” requires the court to consider the first and third
factors. If the copy is a mere duplication for commercial
purposes, the material is presumptively unfair, especially if the
duplicate would serve as a market replacement for the original.
However, if the work is non-commercial or “transformative”, the
copyright holder must show some likelihood of further harm exists
to the market of the original or to the market for derivative works.
II. TWO SUPREME COURT APPLICATIONS OF THE FAIR USE DOCTRINE
Since
the fair use doctrine calls for a case by case analysis, two Supreme Court
cases, Sony Corp. of America v. Universal City Studios, 220 U.S.P.Q.
665 (1984) and Campbell v. Acuff-Rose
Music Inc., 114 S.Ct. 1164 (1994) may be useful to interpret how
courts determine whether a work is considered a fair use of the
copyrighted version. In Sony, the Court addressed whether the sale of the
petitioners’ copying equipment to the general public violated any of the
rights conferred upon the respondents by the Copyright Act. The Court considered each of the four factors and concluded
that non-commercial home use recording of material broadcast over the
public airwaves was a fair use of copyrighted works and did not constitute
copyright infringement.
In Campbell, the Respondent filed suit against members of the
rap group 2 Live Crew and their record company claiming that
the group’s song, “Pretty Woman”, infringed on Acuff-Rose’s copyright
in Roy Orbisons’s rock ballad, “Oh Pretty Woman”. The Court
held that the factors must be considered in light of the copyright’s
purpose of promoting science and arts and that 2 Live Crew’s commercial
parody may be a fair use within the meaning of the Copyright Act.
III. VIOLATIONS OF THE COPYRIGHT ACT
Anyone
who violates the fair use doctrine or any of the exclusive rights of the
copyright owner as provided by Sections 106 - 118 or 106A(a) is an
infringer of the copyright and is subject to any of five penalties defined
in 17 U.S.C. § 501 et seq.: an
injunction, impounding and disposition of infringing articles, payment of
the owner damages and profits recognized by the infringer, costs and
attorney’s fees, or penalties for criminal infringement. |
