Copyright and Fair Use Recent Legal Decision Explained by Legal Genealogist

Standard disclaimer: I am not a lawyer and my comments in this (or any other blog post I make) is not, nor should it be construed to be, legal advice. Need legal advice? Pay a lawyer who specializes in the area of law you need advice on.

Judy G. Russell, the Legal Genealogist, explains a recent court decision on “Fair Use” at https://www.legalgenealogist.com/2018/07/09/16661/. I will address some general “fair use” misinformation below, but thought it was important that people understand the point Judy makes about “fair use” not being blown wide open as incorrectly reported by many people online.

I like how Judy sums it up:

So don’t be fooled by the headlines. No, copying of photos found on the internet is not fair use, not in all cases, not under all circumstances. In many cases, it isn’t going to be a close case.

“Fair use” is an often misunderstood concept. First, many countries don’t have a fair use exclusion. Second, in the U.S., it’s a very limited concept. I see people routinely claim “fair use” when they post a video on YouTube or a photo or text excerpt on Facebook, social media, or a blog.  If you read the first part of Judy’s blog post, she gives some excellent information about “fair use.”

You can also find a lot about “fair use” on the U. S. Copyright Office’s website, https://www.copyright.gov/, including this section https://www.copyright.gov/fair-use/more-info.html.

From the second link,

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.  Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

  • Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes:  Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair.  This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below.  Additionally, “transformative” uses are more likely to be considered fair.  Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
  • Nature of the copyrighted work:  This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole:  Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
  • Effect of the use upon the potential market for or value of the copyrighted work:  Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.

Please note that the Copyright Office is unable to provide specific legal advice to individual members of the public about questions of fair use.  See 37 C.F.R. 201.2(a)(3).

I bolded the four items above; they are not bolded on the Copyright Office’s link I posted. How much you use can go a long way in moving it from fair use to a copyright violation. About a decade ago, I had a business professor say fair use was maybe 10% for a fairly small book, song, or similar written work, but not to exceed a couple of pages if it’s a longer work even if the amount you included was less than 10%. I don’t know if that’s still the norm as I have no plans to test it out, especially since the Copyright Office includes the following warning in the quoted text above:

This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.  

Fair use is a common enough question I run across in two types of social media groups – writer/author groups and genealogy groups.

 

 

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