The fourth factor argued in favour of fair use in a significant number of cases, since the publisher had not provided a digital licence for the work in question. If such a license was available, either through the Copyright Clearance Center or through the publisher, it was assumed that the fourth factor disadvantaged fair use. However, in a number of cases, the GSU was still able to prevail against the fourth factor by showing that digital royalties represented only a very small portion of the publisher`s total revenue from the work, including book sales. The elimination of these fees, even if “everyone did it”, was therefore deemed unlikely in order to affect the publisher`s incentive to publish. The assessment of the potential economic harm of non-transformative use in light of the publisher`s incentive to publish (or the author`s incentive to write), as ordered by the Court of Appeal, makes theoretical sense. However, it is difficult to apply it in practice outside of litigation, as the potential loyal user usually has limited knowledge of the publisher`s finances. Cases where satirical use has been found fair include Blanch v. Koons and Williams v. Columbia Broadcasting Systems. [14] Again, parody is subject to a slightly different fair dealing analysis in terms of market impact. It is possible that a parody will reduce or even destroy the market value of the original work. That is, the parody can be so good that the audience can never take the original work seriously again. While this may result in a loss of income, it is not the same type of loss if an infringer simply appropriates the work.
As one judge explained, “The economic effect of a parody we are concerned with is not its potential to destroy or diminish the market for the original – any bad review can have that effect – but whether it meets the demand for the original.” (Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).) Find the copyright owner and ask. There are no special forms to use, and approval can be verbal or written, although it is good practice to obtain written authorization. The copyright holder is free to charge whatever fee they want, although the user is also free to try to negotiate a lower royalty. Most large publishers and journals have an “authorization office” or “rights publisher,” and a written request in this manner usually reaches the right person. You must indicate the publication from which you wish to extract; the exact pages, chapters, photos or similar you wish to use; the number of copies you wish to make; and the purpose of their use (e.g., “as part of a bachelor`s degree in economics at Harvard College”). Many authorization offices accept requests via email or through the publisher`s website.
In addition, you have a stronger fair dealing case if you copy material from a published work than from an unpublished work. The scope of fair use is narrower for unpublished works, as an author has the right to control the first public appearance of his statement. The first factor focuses on whether the use is commercial or non-commercial and whether the use is transformative. If a use is commercial, it is less likely to be fair use, and if it is non-commercial, it is more likely to be fair dealing. Transformative uses are those that add something new, with a different purpose or character, and do not replace the original use of the work. If the use is transformative, it is more likely to be fair dealing, and if it is not transformative, it is less likely to be fair dealing. Usually, the Creator does. However, if he creates the work in the context of an employment relationship or is commissioned to perform the work under a corresponding contract, it is a “commissioned work” and the employer or contractor owns the copyright. The co-creators jointly own the copyright to the work they create together. In Campbell v.
Acuff-Rose Music Inc,[13] the U.S. Supreme Court recognized parody as a potential fair use, even if it was profitable. Roy Orbison`s publisher, Acuff-Rose Music, sued 2 Live Crew in 1989 for using Orbison`s “Oh, Pretty Woman” in a mocking rap version with altered lyrics. The Supreme Court dismissed 2 Live Crew`s version as a ridiculous commentary on earlier works, ruling that while the parody itself was the product and not just the advertising, the commercial nature did not impede the defense. The Campbell court also distinguished parodies from satire, which they described as a broader social critique that is not inextricably linked to the ridicule of a particular work and therefore does not deserve the same exceptions as parody, as the satirist`s ideas can be expressed without the use of the other particular work. Courts consider four factors when assessing whether the unauthorized use of copyrighted material is fair. The following factors are guidelines under copyright law: To determine whether or not a use is fair dealing, always remember that you must apply all four factors. For example, don`t jump to conclusions based solely on whether your use is educational or commercial. You must still assess, apply and weigh the nature of the copyrighted work, the quantity or relative importance of the portion used, and the potential impact of the use on the market or value of the work. This flexible approach to fair dealing is crucial for the law to adapt to changing technologies and meet the innovative needs of higher education.
Not all factors need to be weighed for or against fair dealing, but overall, the factors will generally lean one way or the other. In addition, the relative importance of factors is not always the same. Your analysis should lead you to a conclusion. There are exceptions to this rule, particularly the fair dealing doctrine discussed in the next section, but in general, unauthorized use of a copyrighted work constitutes copyright infringement and may expose the infringer to civil and criminal penalties under federal law. The third factor considers the amount of copyrighted works that have been used as a whole relative to the copyrighted work. If the quantity used is very small compared to the copyrighted work, this factor favours the determination of fair use, but if the quantity used is not negligible, this factor favours the copyright owner. This factor also takes into account the qualitative quantity of the copyrighted work. If the part used was the “core” of the work, this factor will likely argue against a finding of fair use, even if that part was otherwise a very small amount. What are the relevant considerations when applying the first fair use factor – purpose and nature of use? When reviewing fair dealing cases, you may find that they sometimes contradict each other or contradict the rules set out in this chapter. Fair use involves subjective judgments that are often influenced by factors such as a judge`s or jury`s personal sense of right or wrong.
Despite the fact that the Supreme Court has emphasized that insult is not a fair dealing factor, you should be aware that a morally offended judge or jury can justify its decision against fair dealing. While one or the other factor may be more important in determining fair use, each factor must be considered and no single factor can determine whether use is covered by the fair use exception. However, the factors that tend to be the most influential are the first and fourth influencing factors. Some people mistakenly believe that it is permissible to use a work (or part of it) if there is recognition. For example, they believe it is acceptable to use a photo in a magazine as long as the photographer`s name is included. That`s not true. Attribution of source material (e.g., attribution of photographer) may be a consideration in a fair use provision, but does not protect against a claim of infringement. In some cases, such as advertising, acknowledgments may backfire and create additional legal claims, such as infringement of the right to publicity. If you have doubts about the right to use or acknowledge a source, it may be wiser to ask permission from the copyright owner. For more information on these topics, see the following question (How does fair dealing apply to the use of third-party materials on a course website?). When the Copyright Act of 1976 was enacted, there was extensive debate about photocopying copyrighted material for educational and scientific purposes. Congress refused to pass a specific exemption for these photocopies, leaving the fair use doctrine instead.
Section 107 provides that if the traditional criteria are met, fair use may extend to the reproduction of copyrighted material for educational purposes. The difficulty lies in the application of these criteria. Recognizing this difficulty, the House Judiciary Subcommittee asked representatives of copyright owners and educational institutions to develop a set of specific guidelines, and the resulting guidelines were included in the House Report on the Copyright Act of 1976. In May 2015, artist Richard Prince published a photography exhibition at the Gagosian Gallery in New York entitled “New Portraits”. His exposure consisted of screenshots of Instagram users that were largely unchanged, including Prince`s comment.[54] [55] [56] Although no Instagram user allowed Prince to use his images, Prince argued that adding his own comment to the images was fair dealing, so he did not need permission to use the images or pay royalties for its use. [55] One of the coins sold for $90,000.