Fair Use is part of Title 17 and is outlined in Section 107. It allows a copyrighted work to be used in certain circumstances without permission from the copyright owner. The idea behind Fair Use is to nurture the creation of new works, some of which may need to borrow from existing works. For example, if you are writing a book promoting a new theory of evolution, you may want to include quotes, or even entire pages, from books and journals written by respected scholars who support your theory. If you must get permission from every copyright owner, and perhaps have to pay to use their materials, you may never get started on your new book. Many of the creative works that exist today would never have been created if it weren’t for the Fair Use doctrine.
As a photographer, as long as you pursue infringements of a commercial nature you probably won’t be sending many demand letters to infringers who can legitimately claim a Fair Use defense. What you are more likely to encounter are commercial infringers who claim Fair Use simply to justify not paying you, so you should know something about the laws governing it. In nearly three hundred copyright infringement cases that I have personally pursued, only two commercial infringers ever raised the Fair Use defense. On the other hand, I’ve had at least a dozen cases in which even I would agree that Fair Use might apply, and the infringers paid my settlement fee without mentioning it.
The Fair Use statute (§107, Limitations on exclusive rights: Fair Use) begins by listing possible examples of Fair Use:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
Contrary to how most people interpret the first sentence of §107, simply using a photo without permission for news reporting, commenting, criticism, teaching, scholarship, or research does not automatically qualify the use as being fair. Courts, including the Supreme Court, have made it clear that these examples are just that—examples. However, those who do not understand the law (e. g. most copyright infringers) think that if their use of a photograph falls into one of these categories that it qualifies for Fair Use, and once they get this into their heads it’s hard to convince them otherwise. If the infringer has money, just turn the case over to an attorney and let him learn about Fair Use the hard way. If the infringer is some loser who is blogging in his parent’s basement, just be happy he removed your photo—most do—because that’s probably the end of it.
The core of §107 is the second sentence and the subsequent list of “factors.”
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(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
Fair Use can only be determined by a judge or jury on a case-by-case basis using the four factors outlined in the statue. Therefore, the only way to really know if the unauthorized use of copyrighted materials is fair is to take the case to court, and outcomes are never certain. Because of this, copyright holders take a big risk with legal fees in Fair Use cases where the infringer has a decent defensive argument, for there seems to be no rhyme or reason as to who is going to win. Nearly identical cases often end with completely different verdicts, leaving legal scholars scratching their heads. Federal judges, who aren’t even required to have a law degree, are certainly not well versed in all aspects of the law governing the cases they hear, and attorneys with superior debating skills can sway a jury to their side. This uncertainty may leave the copyright owner holding the bag for his own legal fees, not to mention the legal fees of the defendant should he lose.
So how are these Fair Use cases decided? The simple explanation is if the court feels that at least three out of the four factors fall in the copyright owner’s favor, he wins. If three out of the four fall in the infringer’s favor, he wins. However, given the circumstances of the case, one or more factors may not be very important and are therefore given less weight in the decision; another factor may be extremely important and given more weight. As a result, a person could win with only one factor in his favor, or lose with three.
In part two of Fair Use Explained, I will discuss the first factor: The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.