Petock&Petock - WHAT IS FAIR USE IN COPYRIGHT LAW?

What is Fair Use in Copyright Law?

By Michael C. Petock, Esquire

Copyright protects an author’s original creative works. A few examples of the types of works that are entitled to copyright protection are literary works, graphic designs, web pages, musical recordings and software.

Generally the author of or owner of rights in a copyrighted work enjoys exclusive rights in and to his or her work. The exclusive rights enjoyed by the copyright owner include: the right to reproduce the copyrighted work; the right to prepare derivative works based upon the work; the right to distribute copies of the work to the public; the right to perform the copyrighted work publicly; and the right to display the copyrighted work publicly.

There does exist an important exception to the exclusive rights granted to a copyright owner found in section 107 of the Copyright Act known as “fair use”. The law permits anyone to make use of a copyrighted work if the use meets the criteria of a fair use.

While there is no hard and fast rule that tells you whether a use or intended use of a copyrighted work is a fair use or not, Section 107 provides some examples of the types of activities that are intended to be fair use. The example recited in the statute include: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. So, for example, a movie critics use of very brief clips of a movie for purposes of reviewing the movie is most usually fair use. Likewise, a professor distributing a newspaper article to the students in his or her class as part of an assignment is also probably a fair use.

Court’s engage a balancing test to decide whether a use is fair use. The factors that courts consider include:

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. An academic use of a copyrighted work is more likely to be a fair use than a purely commercial use. Further, the more “transformative” the new work is compared to the copyrighted work the more likely it is a fair use.

(2) The nature of the copyrighted work. Fair use is also more readily applied when the use of a copyrighted work involves an informational/factual type of work as opposed to using more creative type works such as non-fiction writing. Further, use of a published work is more likely to be fair use as opposed to use of an unpublished work.

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Basically, the more of the copyrighted work that is used, the less likely it will be considered fair use.

(4) The effect of the use upon the potential market for or value of the copyrighted work. A use that replaces the market or need for the copyrighted work is not likely to be fair use.

A fairly recent application of fair use (which is an affirmative defense to a claim of copyright infringement) occurred in J.K. Rowling v. RDR Books, 575 F.Supp.2d 513 (S.D.N.Y. 2008) in which J.K. Rowling, the author of the insanely popular Harry Potter novels, sued book publisher RDR Books for copyright infringement based on the publication of the Harry Potter Lexicon, “an A-to-Z guide to the creatures, characters, objects, events, and places that exist in the world of Harry Potter.”

In its analysis of whether the defendant’s publication of the Harry Potter Lexicon, which the defendant’s admitted was based entirely on the content contained in the Harry Potter novels, constituted a fair use the Court viewed reference-type works such as the Harry Potter Lexicon favorably saying:

“[i]n striking the balance between the property rights of original authors and the freedom of expression of secondary authors, reference guides to works of literature should generally be encouraged by copyright law as they provide a benefit [to] readers and students….”

Nevertheless, based on the specific facts of the case the Court ruled against RDR Books finding inter alia that the Harry Potter Lexicon copied too much of J.K. Rowling’s “colorful literary devices” than “reasonably necessary for the purpose of creating a useful and complete reference guide.”

As is demonstrated by the case involving the Harry Potter Lexicon, fair use cases generally are decided on the specific facts of the case at hand, and therefore in many instances unless you are familiar with the case law it is difficult to know for sure prior to making use of a copyrighted work whether the intended use will be a fair use. Many of the Court’s findings in J.K. Rowling v. RDR Books actually supported fair use. For example, the Court said that the Harry Potter Lexicon’s purpose was transformative since it served as a reference guide as compared to the purely entertainment purpose served by the original novels. The Court also found that reference guides like the Harry Potter Lexicon are clearly permissible rejecting as missing the point the argument asserted by J.K. Rowling that the market for her Harry Potter Encyclopedia that she planned to write would be harmed by the Harry Potter Lexicon at issue.

Probably had the author of the Harry Potter Lexicon, Steven Vander Ark, used less verbatim copying of Rowling’s original expression in making up his encyclopedic entries fair use would have been found. For some entries, however, the Harry Potter Lexicon copies Rowling’s original expression verbatim even when describing ordinary objects that exist in the real world. For example, the Lexicon entry for “Mirror of Erised” utilizes Rowling’s original language from Harry Potter and the Sorcerer’s Stone to describe a mirror: “A magnificent mirror, as high as a classroom ceiling, with an ornate gold frame, standing on two clawed feet.” Clearly, there are other ways this object could have been described without resorting to copying J.K. Rowling’s highly aesthetic and original language.

One lesson that can be taken from the J.K. Rowling v. RDR Books case is that it if you are considering making use of another’s work it is highly advisable to get the opinion of an experienced copyright attorney as to whether your intended use is a fair use. As Steven Vander Ark, the author of the original and post-law suit versions of the Harry Potter Lexicon said:

“We learned a lot at the trial about what was acceptable, what would follow the fair use guidelines,” “That was not clear before. There was no law on the books that made it clear what was acceptable and what wasn't. So, coming out of the trial, I had a much better idea of what should go into the book.”

An experienced copyright who is familiar with the case law can offer a great deal of guidance as to how a copyrighted work can and should be used without running afoul of the law. Often we find that there are cases that have been decided that are directly on point with respect to the transformative use of a copyrighted work our client’s wishes to employ. Not only can getting this advise from an attorney help avoid an injunction being issued with respect to your work it can also avoid the possibility of you being hit with hefty penalties including up to $150,000.00 per infringement in the case of willful infringement.

Michael C. Petock is an attorney with the Phoenixville law firm of Petock and Petock, LLC. Petock and Petock, LLC handles business, intellectual property and litigation matters. Please contact us to find out how we help you achieve the results you need.