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 | | | Review this if you are planning on using any copyrighted materials. | | | | | | | | Fair use
This is a very important exception to the general rule that copyrighted material cannot be used without consent. It is particularly significant to the news media, which is in the business of conveying information, some of it based on copyrighted work.
Federal copyright law states that an individual other than the copyright owner can use a copyrighted work without permission if the use would be considered a "fair use."29 The Fair Use Doctrine is, in effect, a compromise. It represents a balance by lawmakers of the need to encourage scientific and cultural progress by making sure creators get credit for what they do against society's need for readily accessible information. Recognizing the inherent conflict in these two goals, fair use strives to find a reasonable middle ground.
Whether or not the use of a copyrighted work by a non-owner would be considered a "fair use" is not always an easy call. There is no black and white rule; each case must be examined on its own. Indeed, it is this lack of a hard and fast standard that has lead some to label fair use "the metaphysics of law." Nevertheless, as one of the country's leading experts on copyright law has said: "Ninety-nine times out of a hundred a scholar who wants to quote a reasonable portion of a copyrighted work can do so without obtaining permission as long as the quotation does not constitute a substitute for the original."30
Courts look at four factors to determine if the use of a copyrighted work is a fair use:31
1. The purpose and character of the use. Non-commercial uses for purposes like news reporting, teaching, criticism or commentary are more likely to be fair.
2. The nature of the copyrighted work. Uses of works containing mostly factual material like maps or biographies are more likely to be fair than uses of highly creative and original works like novels and cartoons.
3. How much of the original work is used. No more of the work than what is necessary may be used fairly. The test is both quantitative (how many words of a 200,000 word book are reproduced?) and qualitative (using the "core" or "heart" of a work -- no matter how small -- is less likely to be a fair use).
4. The effect of the use on the commercial value of the copyrighted work. This is the most important factor.32 If consumers are likely to buy the use as a substitute for the original, it probably will not qualify as a fair use.
Fair use therefore authorizes the use of limited amounts of copyrighted works for purposes like news reporting and education so long as the use does not destroy the commercial value of the copyrighted work. Thus, a student newspaper can probably reproduce a single photograph -- particularly one that is reduced in size from the original -- from the package art from the "You Oughta Know" CD to illustrate a review of the CD without obtaining Alanis Morissette's (or her record company's) permission. Other fair uses probably include: use of a single frame from a comic strip to illustrate a news article reporting the retirement of the strip's creator; reprinting a Joe Camel advertisement taken from a national magazine to illustrate a story on the effect of cigarette advertising on minors; reprinting two lines from the senior class song as part of a yearbook editor's "The Year Gone By" column. But using an entire comic strip or Joe Camel advertisement on senior class T-shirts or printing all the lyrics from the senior class song on the inside cover of the yearbook will probably not be fair uses.
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