Fair Use of the Week – by “Aditya K”

FUOTW

Hello YaleLawTech audience! I hope you’re enjoying your June, wherever you may be. I’m happy to announce a new feature on the YLT blog: Fair Use of the Week.

Fair Use of the Week, as the name implies, will be a weekly blog post exploring some current example of fair use. These examples run the gamut of anything on the internet—a mashup, a parody, a compilation, a remix, or a collage. These works might take many forms—digital videos, songs, computer code, or the latest meme. We plan to explore how and why each week’s example embodies the idea of fair use by looking to the text of the Copyright Act, examining judicial precedent, drawing on the historical purposes of copyright, and evaluating the transformative nature of the work.

Fair use is a limitation on copyright infringement. It has often been said that culture builds on the past; this concept is sometimes taken more literally, with works drawing from and incorporating previous works. When this “remix” occurs in a limited amount, in a transformative manner, or for a legally defined purpose (such as commentary, criticism, or parody), it is considered an example of fair use.

In the United States, fair use is defined in Title 17, Section 107, of the United States Code:

    [T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means [such as selling, renting, leasing, publicly performing, displaying, or digitally transmitting] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 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.

    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

This language sets out a broad balancing test and does not draw a “bright line” or mark a clear limit on the quantity or quality of a work that someone can use in order for that use to be “fair.” In fact, only a court can definitively say whether or not a work falls under the protection of fair use, and courts make this determination on a case-by-case basis. (Check out Folsom v. Marsh, which first recognized the court-made doctrine of fair use.) Because of this, there is an unresolved tension between protecting and promoting works experienced by both content owners and remixers. In this blog series, we will show you how the above factors can apply in a variety of ways.

The ability to appropriate material into new pieces is easier than ever. In our digital ecosystem, fair use plays an increasing role as it embodies heartfelt criticism, creation of homage, or affectionate (or not so affectionate) parody. Taking full creative advantage of the internet and new technologies thus relies on the concept of fair use—and a strong commitment to upholding it. Without fair use, much of the novel productions we are used to in this day and age would not exist, putting a cork on these newly explored media. Through this series of blog posts, we hope to show not just the prevalence of fair use, but also its potential, its power, and its importance.

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