How much copying is ‘fair use’?

copyright-symbol
Which of the following statements is/are true?

(a) Copying up to 25 words is fair use.
(b) Copying less than 10 percent is fair use.
(c) Copying 25 words or 10% is fair use.
(d) Copying only a small amount is fair use.
(e) If you don’t make money on it, it’s fair use.
(f) It’s fair use if it’s for an educational purpose.
(g) Non-profit organizations can’t be sued for copyright infringement.
(h) It’s fair use if there’s no copyright notice on it.
(i) If the author is dead, you can copy anything he wrote.
(j) As long as you give credit to the author, it’s fair use.
(k) “Fair use” is a myth. There is no such thing.

If you answered (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), or (k), then you failed the test. You’re in good company, though; nearly everybody believes at least one of these things is true.

Fair Use has been called “the most troublesome in the whole law of copyright,”1 and for good reason. With the exception of some narrowly limited statutory exemptions, there are no “bright line” tests for determining what is fair use. The bulk of the law on fair use has been left to the courts to develop. Unfortunately, they have not established any specific “bright line” tests, either.

The four-prong test

17 U.S.C. § 107 provides that copying material “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright….” It then directs courts to consider four factors when deciding whether a particular use should be permitted as fair use:

(i) the purpose and character of the use;
(ii) the nature of the work;
(iii) the amount and substantiality of the portion used; and
(iv) the effect of the use on the market for the work.

Taken together, it is clear that Congress intended courts to treat commentary, criticism, news reporting, teaching, scholarship, and research as uses that will satisfy the first prong of the test. This doesn’t mean these are the only kinds of uses that may qualify, though. Nor does it mean that every use of copyrighted material for one of the specified purposes is fair use. The other three prongs must still be considered.

Under the fourth factor, even an educational use may be disqualified from “fair use” protection if it competes in the same market with the original work. If, for example, a teacher were to photocopy and distribute a textbook to students, students would no longer have a need to buy copies of the textbook for themselves. Such a use would have a negative impact on the market for the textbook. In this scenario, a teacher asserting “fair use” as a defense to infringement probably would not be successful.

2 Live Crew, Pretty Women, and the birth of the Transformative Use doctrine

In the 1990’s, 2 Live Crew was sued for copyright infringement for using “samples” of a substantial amount of Roy Orbison’s “Oh Pretty Woman” in a recording of their own. (Although the band had asked, permission had been refused for reasons having to do with protecting artistic integrity. 2 Live Crew therefore went ahead and copied the original recording anyway, ultimately making a nice bundle of money on it.) The case went all the way the United States Supreme Court.

To the surprise of many copyright attorneys, the U.S. Supreme Court ruled in favor of 2 Live Crew. In so doing, the Court established a precedent for “transformative use” as a factor emanating from the other four factors, or coming within the penumbra of the other four factors. Not only that, but according to Justice Souter (who wrote the opinion for the Court), the extent to which a use is transformative was henceforth to be regarded as  the most important consideration in the fair use analysis.2 The more transformative a new work is, the more likely it is to be fair use.  The fact that a work is transformative, the Court declared, outweighs all the other factors. Thus, the Court ruled that even though 2 Live Crew had engaged in a substantial amount of copying; had copied “the heart” of the song; and had commercially exploited the song in a way that negatively impacted the market for the original, the use nevertheless qualified as “fair use” because it was a “transformative” use.

Creating a new internal conflict in copyright law

The Court’s ruling seems to be at odds with the Copyright Act’s grant of an exclusive right to the author of a copyrighted work to make derivative works from it. The Copyright Act defines a derivative work as “any form in which a work may be recast, transformed, or adapted.”3 The language of the statute seems to be pretty clear that Congress intended to ensure that authors would have the exclusive right to transform their works into something else. According to the U.S. Supreme Court, however, it is fair use for other people to transform an author’s work into something else without the author’s permission.

While no definition of transformative use is set out in the Copyright Act, it basically includes any use that alters the purpose, meaning or function of a work, or a portion of it. In other words, it is any use that makes the work serve a purpose, express a meaning, or function in a way that is different from the original purpose, meaning or function of the work.

Parody

Parody is one kind of transformative use that has long been treated as “fair use.” This is because a parody, by definition, comments on, and is a criticism of, the original work. As such, it falls squarely within two of the purposes Congress has identified as the most deserving of “fair use” protection. On balance, other factors tend to support its classification as “fair use,” primarily because parody normally does not displace the market for the original. The segment of the market that is likely to buy the original normally is not the same segment of the market that is likely to buy a work that is critical of it. (Fans are not likely to be in the market for products mocking the things they adore.)

“Entirely different aesthetic”

Historically, courts treated the fact that copying of a work was for purposes of criticism and commentary as being central to “fair use” analysis in cases where no other Congressionally identified purpose (research, education, news reporting) existed. This was why unauthorized copying for a satire (which doesn’t use material from the original for purposes of commentary or criticism of the original work) is not as likely to qualify for “fair use” protection as a parody is. After the 2 Live Crew decision, however, courts seem to be trending toward interpreting “transformative” fair use in an increasingly broad way. In Cariou v. Prince,4, for example, the Second Circuit Court of Appeals held that an artist’s incorporation, into his paintings, of entire photographs that other people had taken was a sufficiently transformative use to qualify as fair use. The Court reasoned that the new work created “a different aesthetic” from that imparted by the original work. In so holding, the court expressly rejected the notion that the new work must criticize or comment on the original in order to be a protected fair use.

It is difficult to square this case with other court decisions that have denied fair use status to satire specifically because satire does not criticize or comment on the original work. Most satire certainly does create a different aesthetic from the original. An orginal work may project a somber, philosophical aesthetic; a satire of it most likely will create the opposite kind of aesthetic, i.e., a light, humorous one.

It is also difficult to square the Cariou decision with the exclusive right of the author to make derivative works from his work. The artist in this case clearly copied the work and then modified it. That is exactly what it means to make a derivative work. There is nothing in the Copyright Act that explicitly requires a derivative work to have the same “aesthetic” as the original work. The rule now, though, at least in the Second Circuit, seems to be that an author has an exclusive right to make derivative works only to the extent the derivative work has the same “aesthetic” as the original work.

The potential import of this ruling is not yet known. For example, how great a difference will qualify as “entirely different”? Since judges are not art experts, will the testimony of expert witnesses qualified to form opinions about aesthetics be necessary in fair use cases? If so, what standard relevant to copyright principles should they employ to decide whether a particular work has an “entirely different” aesthetic versus, say, only a “partially different” aesthetic?

Conclusion

While some courts seem to be applying increasingly expansive definitions of fair use, not all judges are in in the mood to whittle away authors’ rights. “Judges do not share a consensus on the meaning of fair use.”5 It has become what Judge Pierre Leval has described as “a disorderly basket of exceptions to the rules of copyright.”6

You can gamble on the possibility that a court will determine your proposed use of copyright protected material is “fair,” if you wish. If you are interested in following the safest course, however, then you should try to get permission from authors, composers, artists, and recording companies before appropriating the fruits of their labor.

 

  1. Dellar v. Samuel Goldwyn, 104 F.2d 661 (2nd Cir. 1939.)
  2.  Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).
  3.  17 U.S.C. § 101, emphasis added.
  4. 714 F.3d 694 (2d Cir. 2013)
  5. Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990)
  6. Ibid.

Author’s Guild v. HathiTrust

Author’s Guild, et al. v. HathiTrust, et al., no. 12-4547-cv, (2d Circ., June 10, 2014)

The second in a set of lawsuits commenced by the Author’s Guild in an attempt to stem the tide of mass violations of the copyrights of book authors, this one seems to be a much more reasonable application of the “fair use” doctrine than the Second Circuit’s decision in Author’s Guild v. Google last year was.

In 2004, the University of California at Berkeley and a few other universities embarked upon a program to create scanned digital copies of the books in their collections. Four years later, the HathiTrust was set up to manage this digital library. By 2013, more than 80 institutions were participating in the program, and over 10 million works had been added to the collection. Since permission to reproduce these books had not been obtained, the program appeared to involve as many as 10 million copyright violations. The Court held, however, that the copying fell within the “fair use” exception to copyright protection.

HathiTrust makes its digital collection available free of charge to readers with “print disabilities,” i.e., people whose physical condition (such as blindness or inability to hold a book) makes them unable to read printed books. The Court reviewed the legislative history demonstrating Congress’s intention to allow, as “fair use,” free copies of copyrighted works to be made available to blind individuals. The Court extended the rationale for this rule to bring individuals with any kind of “print-disability” within the “fair use” doctrine.

The Author’s Guild also complained that HathiTrust furnishes digital copies to libraries to replace lost, stolen or destroyed physical copies. The Court dismissed this latter set of claims for lack of standing and ripeness.

Next, the Author’s Guild made the same kind of claim as it did in the Google case, that copying for the purpose of creating a searchable database of books infringes on the rights of individual copyright owners. Unlike Google Books, though, HathiTrust search results do not display pages-long “snippets” of text. In fact, no text at all is displayed. Instead, the user is only told if and how often the term appears. The Second Circuit Court of Appeals appropriately ruled this to be a transformative use that is permitted as “fair use” of copyrighted material. This limited kind of use does not involve unnecessarily excessive copying , and does not dilute the market for the works.

It is difficult to argue with the Court’s decision in this case. Accordingly, the Second Circuit is now one-for-one on its decisions relating to the permissibility of engaging in mass copyright violations for the purpose of creating searchable databases of copyrighted works.

 

 

Authors Guild v. Google: Is Fair Use Fair?

Google

On November 14, 2013, U.S. Circuit Court judge Denny Chin (sitting by designation in the U.S. district court for the southern district of New York) concluded 8 years of copyright infringement litigation with an order dramatically expanding the “fair use” defense. Seemingly somewhat out-of-sync with the Napster decision a few years ago, the order permits Google to continue to freely copy the entire contents of millions of copyright-protected books and distribute them, or at least significant portions of them, to the public free of charge, without either getting permission from the authors or paying them royalties for their works.

The Google Books project may well be the greatest boon to researchers there has ever been. In the old days, you would need to make a lot of telephone calls and perhaps drive a long distance to a library to track down, say, an exact quotation from a particular nineteenth century physics textbook. With Google, you simply type the name of the text and a few key words into a search bar, and within seconds a link to a copy of the page of the book on which the quotation you seek appears on your screen. Follow the link and the quotation, along with a considerable amount of additional text from the book, instantly appears on your screen. It is a researcher’s dream come true. But what about the rights of authors? Is it fair to them to allow people to read unauthorized copies of their books without having to pay for them? Certainly there can be no  complaint about works that are so old as to have entered the public domain. But what about books that are still protected by copyright?

The Copyright Act prohibits the reproduction of copyright protected books. 17 U.S.C. § 106(1) (2013). It also prohibits the distribution of books that are protected by copyright.  17 U.S.C. § 106(3) (2013). And it prohibits the unauthorized display of protected works. 17 U.S.C. § 106(5) (2013). As part of its “Library Project,” Google digitally scanned millions of books in the Library of Congress, the New York Public Library and several university libraries, and then made them available to the public to view and download for free. Not having obtained permission from the authors and publishers of these books, Google committed millions of violations of each of these laws. The upshot was a class action copyright infringement lawsuit by the Authors Guild on behalf of book authors everywhere.

After more than eight years of litigation, a U.S. district court judge determined that Google had indeed infringed the copyrights of scores of books authors, but refused to hold the company liable for it. Instead, the judge ruled that the massive copying and distribution program upon which Google had embarked came within the “fair use” defense to copyright infringement.

The “fair use” doctrine permits limited use of copyrighted works under some circumstances, in the interest of fostering the development of arts and science.  Because of it, no permission is needed to copy small amounts of  a book for the purpose of criticism, comment, news reporting, teaching, scholarship or research. What Google did went far beyond that, though. Google’s activities involved copying, distributing, and in some cases displaying the entire contents of copyright protected books without permission.

The company was able to secure a favorable ruling by invoking the four-prong “fair use” test set out in the Copyright Act. Under 17 U.S.C. § 107 (2013), an infringing use of copyright protected work is permitted “fair use” if the following factors, on balance, favor unauthorized use of the work:

(1) the purpose and character of the use, including whether such use is of a 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.

The judge found that, on balance, the factors weighed in favor of Google’s massive copying and distribution project. He emphasized the great benefit to the public of having access to a large number of works all at the same time. He rejected the authors’ argument that Google’s scans serve as a market replacement for the books, depriving authors of payment for their work. “Google does not sell its scans,” he noted.

Of course, this ignores the fact that the purpose of copyright is not simply to prevent others from profiting, but to ensure authors a fair return for their labor. According to the judge, though, Google Books actually helps authors sell their books because “patrons use Google Books to identify books to purchase.”

Do people really use Google search to locate nonfiction books to buy? Or do they only read so much of the text as they want or need at that particular moment, thereby alleviating the need to buy the whole book? And does having all the text of a book available for free online remove, or at least decrease, the incentive for libraries to acquire copies for the use of their patrons?

Well, but the judge has this to say:

“[Google Books] has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books…. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books.”

Creating a searchable index of books clearly is a transformative use. As such, it should easily fall squarely within the “fair use” doctrine. Had Google simply created an index that displayed a list of books in which the search terms appear, without displaying the actual text of these books, there would be no question that the creation of the indexing system would have been a fair use. Enabling users to also read entire pages from the books — and in some cases, the entire book — after identifying and locating them, without anybody having to actually pay anything for a copy of the book is a different story.

Predictably, librarians, Internet surfers and Google officials are thrilled with the decision. Authors, not so much. An appeal is almost certain, although all indications are that the Second Circuit probably will affirm the decision.

You can read a copy of Judge Chin’s ruling here:

http://publishersweekly.com/binary-data/ARTICLE_ATTACHMENT/file/000/001/1887-2.pdf