Copyright Protect and Fair Use

The Copyright Act of 1976 is the basic framework for current US copyright law. The foundation of federal copyright legislation is Article I, Section 8 of the U.S. Constitution, which enumerates the powers of Congress, and states that Congress is empowered “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their works and inventions.”

What Does Copyright Protect?

Copyright protects the expression of an idea, however, that idea is expressed in: a book or piece of journalism, a painting, a photograph, a piece of music, or a three-dimensional artwork.

A copyright owner has the exclusive right to reproduce his or her work, subject to certain limitations.   One of the most important limitations is the doctrine of “fair use.”  Fair use allows a person other than the copyright owner to copy portions of a work for limited purposes, including criticism, comment, news reporting, teaching, scholarship and research.

Copyright on Fair Use Exception

Whether the use of a copyrighted work falls within the fair use exception depends on the specific facts under review. Section 107 of the Copyright Act lists four factors to be considered in determining whether a use qualifies as a “fair use”:

1. The purpose and character of the use of the copyrighted work:

Is the use “transformative”? Is the copyrighted work used in a new way?  Examples:  (a) Andy Warhol uses a photograph of Marilyn Monroe as the basis of a series of silk-screened portraits employing colors not found in nature; (b) Shepard Fairey uses a photo of Barack Obama to make a campaign poster; (c) Jeff Koons incorporates a photo of a pair of legs wearing Gucci sandals into a painting; and (d) Google creates “thumbnails” of copyrighted images to incorporate into displays of search results.

Is the use commercial or non-commercial? Will the new use generate revenue?  Commercial uses can still be fair use, but revenue generation tends to weigh against a determination of fair use.

2. The type or nature of the copyrighted work:

A finding of fair use is more likely when the work is published and fact-based, rather than creative.

3. The amount that is copied in relation to the entire work:

Reproduction should be limited to the amount necessary for the specific purpose. Examples: (a) A book reviewer quotes limited passages of a book he is reviewing; (b) a TV film critic runs an extended clip of a movie to illustrate a point he is making about its cinematography; or (c) a parody of “Gone With the Wind” overdubs the dialogue of the entire film with new and satirical dialogue.  Each of these examples could qualify as fair use.

4. What is the market effect of the use?

Will copying have a negative impact on the market for or value of the work? If the copied work becomes a substitute for the original in the marketplace, that will militate against fair use.  Examples: (a) A textile manufacturer reproduces a copyrighted design more cheaply in China; (b) George Harrison uses the melody of the song “He’s So Fine” as the melody of “My Sweet Lord”; or (c) The magazineThe Nationpublishes an article about President Gerald Ford’s memoirs in which approximately 400 of the 2,500 words in the article were taken verbatim from the memoir. Time magazine sued (and won) because it had purchased the right to publish excerpts from the book one week prior to its publication.

Note on Copyright and Fair Use

1. Fair use goes to the concept of permission. Attribution or credit is not a substitute for permission.
2. In addition to issues of fair use, photographs of people may infringe on rights of privacy or publicity. The right of privacy is the right to be left alone.  The right of publicity is the right to the use of one’s likeness or image or persona for commercial exploitation.  Example: (a) Ford Motor Company wanted to hire Bette Midler to sing “Do You Want to Dance” in a TV commercial.  Midler declined, so Ford hired a singer who could sound like Midler.  Midler sued, and won. (b) A radio spot for a winery used an impersonation of Julia Child to voice the spot.  I got the call from Julia’s attorney.  I settled.
3. Buildings designed after December 1, 1990 are copyrighted. If you use photos of buildings, be sure that they are taken from a public space.
4. When using photos of people, (a) Use photographs of people in larger, public scenes; (b) avoid using photographs of celebrities; and (c) avoid photos of people engaging in private activities.
5. Consider using photos that are “open availability.” The following sites offer photos, drawings and clip art at low or no cost.
   • www.public-domain-image.com/
   • https://www.loc.gov/pictures/
   • https://www.flickr.com/creativecommons/
   • https://search.creativecommons.org/
6. Purchase a subscription to a stock photo house, or purchase single photos.
   • https://www.shutterstock.com/index.mhtml?kw=shutterstock&gclid=CKSu6eWPv8ECFQIF7AodlXYA1Q&ws=1
   • https://www.123rf.com/?src=googtrackad14&gclid=CPLDqZuQv8ECFSxk7AodXmIA8w
   • https://www.istockphoto.com/