Fair Use: A Guideline For Those In Doubt

Fair Use
A Guideline For Those In Doubt

Tuesday, January 12, 2010

What Is Copyright?

To understand Fair Use we must ﬁrst clarify what Copyright
means:

Copyright gives the creator of an idea or item exclusive
rights to that work which include its publication, distribution
& adaptation. Copyright is only for a certain period of time
(usually between 50-100 years after the authorʼs death) at
which point the work enters the public domain.


What is Fair Use?
Wikipedia deﬁnes Fair Use as: “A doctrine in United States
copyright law that allows limited use of copyrighted material
without requiring permission from the rights holders.”

In English?

Fair use is the copying or use of a copyrighted material
(images, audio, video, etc) for a “transformative” purpose
(that is they “transform” the original work).

In general, there are only two categories of Fair Use:
Commentary or Criticism and Parody.


Commentary or Criticism
Fair Use principles allow you to reproduce a portion of a
copyrighted work for use in a commentary or critical review.
The justiﬁcation for this is that the general population will
beneﬁt from the assessment.

Examples

• Quoting an article in a news report.
• Copying a paragraph during a book review.
• Philip DeFranco summarizing news stories and adding
his own (hilarious) thoughts.


Parody
Fair Use principles allow you to create a satire of someone
elseʼs work (usually someone who is well known; a celebrity).
Compared to the other category of Fair Use, Parody permits
extensive use of the original. If this was not allowed then it
would be much harder for one to identify the work as a
parody.

Examples

• Girl Talk
• Weird Al Yankovic
• MadTV
• Scary(1-4)/Disaster/Date/Epic Movie


Fair Use (USA):

There are four factors that judges consider when
ruling on fair use:
1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion
taken
4. the effect of the use upon the potential market.

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html


History of Fair Use

The concept of “Copyright” was first ratified in Great Britain in
1709. The idea of “authorized reproduction” of content was
never part of the original regulation (Statute of Anne) so the
courts created “Fair Abridgment” which evolved into what
we now consider as Fair Use.

Fair Use as we now know it today was first incorporated into
the Copyright Act of 1976. This Act remains as the basis for
all Copyright law within the United States to this day.


History of Fair Use
(On The Internet)

In 2003 the ﬁrst court case involving Fair Use on the Internet,
Kelly vs Arriba Soft Corporation (now Ditto.com),
commenced. This case set the legal precedent for current
Internet Fair Use laws.

The case involved the relationship between thumbnails, inline
linking & Fair Use. The initial proceedings found that Arriba
Soft violated copyright without a fair use defense for using
thumbnail images & inline linking from Kellyʼs site to Arribaʼs
image search engine.


History of Fair Use
(On The Internet)Cont...
The case was appealed and the Judge revised his opinion
that thumbnail linking was in fact fair use for four reasons:

1. The thumbnails were sufficiently transformed.
2. The photos had already been published.
3. Because of their intended use, the thumbnails were the
only way to showcase the links.
4. The thumbnail search would increase exposure of the
original images.

The case was remanded to a lower court for trial however it
was resolved in default judgement (in favour of the plaintiff)
as Arriba Soft had experienced significant financial hardships
and failed to reach a negotiated settlement.


History of Fair Use
(On The Internet)Cont...
It took ﬁve more years (until August 2008) for a Judge to rule
that copyright holders cannot command someone to delete a
posting without deciding
whether or not that item is in
accordance with Fair Use laws.

The case involved a video of
Stephanie Lenzʼs one year old
son dancing to “Letʼs Go Crazy”
by Prince. The 29-second video
was uploaded the YouTube.
Four months after it was posted the owner of the song,
Universal Music, ordered it removed from YouTube.


History of Fair Use
(Canada)
The Canadian Copyright Act takes a different stance on Fair
Use. Our version is called Fair Dealing. Canadian law
doesnʼt actually observe the open-ended U.S. concept of Fair
Use and instead favours a more stringent regulation. It states
that:

“Users may make single copies of portions of works
for research and private study.”

It should also be noted that the other difference between the
Canadian & U.S. laws on Fair Use is that Fair Dealing does
not allow for Parody.


History of Fair Use
(Canada) Cont...
In 2004 the Supreme Court of Canada ruled unanimously on
a case which clariﬁed the concept of Fair Dealing. The case
was CCH Canadian Ltd. vs Law Society of Upper Canada
(LSUC).

The non-proﬁt LSUC was sued for copyright infringement for
providing photocopying services to students, members,
judiciary and researchers.

The ruling was in favour of the LSUC. Their decision was that
it did not constitute copyright infringement when single copies
of research materials were made.


History of Fair Use
(Canada) Cont...
The Supreme Court case established six criteria for
evaluating Fair Dealing:

1. Purpose of the dealing (for research, news reporting?)
2. Character of the dealing (what happened?)
3. Amount of the dealing (number of copies produced?)
4. Alternatives to the dealing (alternate to copying?)
5. Nature of the work (what was the original?)
6. Effect of the dealing (was the original diminished?)


In Depth:
Audio & Video


Fair Use: (vs.) Digital Audio
Fair Use pertaining to audio is difficult to wrap your head around.
The following statement is from the American Government, and is the general
fair use ʻruleʼ pertaining to all works created, including digital audio:

“When it is impracticable to obtain permission, use of copyrighted material
should be avoided unless the doctrine of fair use would clearly apply to the
situation”...

Because fair use is commonly misunderstood, the American Government has
elaborated on the previous statement with a few rules of thumb:

• The distinction between fair use and infringement may be unclear and
not easily defined.
• There is no specific number of words, lines, or notes that may safely be
taken without permission.


(cont...)
Basically, what what was previously said boils down to:
just because digital audio is easy to obtain, download,
copy and redistribute, doesnʼt mean that you are free to
do so.
If you think what youʼre doing is illegal or infringing on the
fair use act? It probably is.
If youʼre sure what youʼre doing is legal and not infringing
on the fair use act? You have the potential to be right...


(cont...)

The best bet for professionals looking to
use music and other art-works is to either
pay royalties to use copyright-protected
music, use public domain music or other
types of legitimate free music.


Fair Use: Digital Audio
(other doctrines)
The following are different versions of ʻuser agreementsʼ all
to which the underlying principle of fair use applies.

public domain music collection - not protected under Copyright Law and
may be used for any private or personal purpose, including as part of non-
proﬁt programs and any classes.

protected by copyright law - can be used as part of non-proﬁt and
educational projects as long as the entire work is not used.

creative commons - can be used based on a set of rules and regulations
chosen by the creator of the work.


(The .mp3)
The rise of the .mp3 was responsible for much of the uproar and
confusion that is fair use vs. Digital audio. It is hard to regulate the
fair use of digital audio with so much of it being ʻfreelyʼ and easily
available.
Files are available online through legitimate sources such
as:
• iTunes
• Amazon
• Puretracks
However, there are just as many illegitimate ﬁles available
through sources like:
• Blogs
• Forums
• Etc...


(Obtaining Digital music legally)

iTunes Store

The iTunes
Store offers
over 10
million high
quality DRM-
Free songs at
as low as .69¢


(Obtaining Digital music illegally)
Online Blogs
Online blogs offer over 10 million high quality DRM-Free songs at as
low as free


(Piracy)
A big part of fair use deals directly with pirating
music.

Using 20 seconds of an artistʼs song in a school
presentation is up in the air as to whether or not
itʼs infringing on the legality of copyright.

However downloading Jay-Zʼs full discography off
of thepiratebay.net is clearly the opposite of legal.


(Piracy) cont...
The music industry estimates that it
loses over 5 million dollars each year to
music piracy.

This is largely due to the number of
illegitimate web sites and peer-to-peer
sharing systems that feature copyright-
protected music without the permission
of the copyright owner.


(Piracy) cont...
Over the years, the music industry has gone through
great lengths to protect digital audio with different
forms of Digital Rights Management.

Digital Rights Management (DRM) is used to impose
limitations on the usage of digital audio generally by
limiting the number of times a song can be copied
and or listened to.

People are often furious at the mere thought of DRM.
They believe that if they buy a song, or an album, that
they are free to do what they wish it. However, this is
the very core of the fair use doctrine vs. Digital
Music; determining what it is you can, and cannot do
with your music.


Can students use copyrighted
material in their assignments?

No*

*unless it’s fair use


From SFU:

“You must obtain the permission of the copyright
holder of an image before using, reproducing, or
manipulating it in an assignment or research
paper. It is a good idea to verify whether you
have permission to use an image before
including it in your work, rather than saving this
step for last.”

http://www.lib.sfu.ca/help/publication-types/online-images


Fair Use: Images

Yo guys! I’m really happy for
you and i’mma let you ﬁnish
this presentation, but Steve
Jobs had one of the best
Keynote presentations of all
time!


A few case studies...


Is this fair use?


Ralph Lauren case

“Every time you threaten to sue us over stuff like
• Posted to this, we will:
Photoshopdisasters.com
a) Reproduce the original criticism, making
damned sure that all our readers get a good, long
• reblogged to boingboing look at it, and;
b) Publish your spurious legal threat along with
• DMCA takedown to copious mockery, so that it becomes highly ranked
Photoshopdisasters.com and in search engines where other people you
threaten can ﬁnd it and take heart; and
boing boing
c) Offer nourishing soup and sandwiches to your
models.”
• photoshopdisaster.comʼs ISP
takes the site down.
http://boingboing.net/2009/10/06/the-criticism-that-
Boingboing says...
r.html


Lesson 1:

Just because the copyright holder says
itʼs infringement, doesnʼt mean it is.


Case 2:
Kineda.com
Mild-Mannered Fashion
Blog
Runs a contest

Fair Use?


Kineda.com But doesnʼt ask permission for the image.
Photographer ﬁnds out. Blogs about it.


But this is a happy story


Lesson 2:

Just because it isnʼt fair use, doesnʼt
mean you canʼt use the image. You just
have to ask (and get a “yes”).


Case 3:

City TV uses photos
from an amateur
photographer on their
crime report

http://torontoist.com/2008/05/
citynews_gets_slapped.php


"Canadian copyright law recognizes that
City TV Response: third party materials like photos may be
used for the purposes of news reporting. It
was in that context that we used this photo."


“Plagiarism is
unacceptable. Broadcast
journalists will strive to
honour the intellectual
property of others,
including video and audio
materials.”
CANADIAN BROADCAST STANDARDS COUNCIL


The biggest issue for CBSC was lack of
credit:
“By failing to provide [credit], the
broadcaster has failed to honour
the intellectual property rights of
the photographer."

Full report: http://cbsc.ca/english/decisions/2008/080509.php


Lesson 3 (and 3.5)

Amateur photographers still hold
copyright

Fair use isnʼt always big guy vs. little guy.
Can be little guy vs. big guy


Has anyone had photos “stolen”
online? (I have!)


Litmus Test
for Fair Use
Are you talking about
the copyrighted work?
OR
Using the work to talk
about something else?


Reference Material
• Fair Use - Wikipedia: http://en.wikipedia.org/wiki/Fair_use
• What is Fair Use: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/
chapter9/9-a.html
• US Copyright Office: http://www.copyright.gov/fls/fl102.html
• Copyright - Wikipedia: http://en.wikipedia.org/wiki/Copyright
• To Share or Not to Share: http://freelanceswitch.com/the-business-of-freelancing/to-
share-or-not-to-share-that-is-the-question/
• Royalty Free Music: http://www.royaltyfreemusic.com/public-domain/basic-rules-fair-
use.html
• Downloading Music MP3s: Peer to Peer File Sharing: http://netforbeginners.about.com/
cs/peersharing/a/aap2p.htm
• Girl Talk Pay what you will: http://74.124.198.47/illegal-art.net/
__girl__talk___feed__the__anima.ls___/

By: David Emmett, Jordan Borth & Sean Filiatrault

Fair Use: A Guideline For Those In Doubt

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