By: Tifanie Jodeh
Copyright is protective of works such as
photographs, music compositions, films, sculptures, news articles and
paintings. These forms of creative,
expressive media are protected as any “original work of authorship fixed in any
tangible medium of expression.” (Under the Copyright Act)
Many content creators are confused about the fair
use doctrine and whether they need permission to borrow from the owners of
copyrighted works. “Fair use” allows conditions under which content creators can
use material that is copyrighted by someone else without paying royalties or
needing to obtain a license. It gives
the public a limited right to draw upon copyrighted works to produce separate
works of authorship. Such examples of uses include news, fair comment and
criticism, parody, reporting, teaching, scholarship and research. Filmmakers,
artists and writers benefit from the fact that the copyright law does not
exactly specify how to apply fair use.
Creative needs are considered and whether the use is “fair” according to
a “rule of reason”.
Courts employ a four part test (set out in the
Copyright Act) and ask two key questions:
1. Did the unlicensed use “transform” the
material taken from the copyrighted work by using it for a different purpose
than the original, or did it just repeat the work for the same intent and value
as the original.
2. Was
the amount and nature of material taken appropriate in light of the nature of
the copyrighted work and of the use.
If the answer to both questions is in the
affirmative, a court is likely to find a fair use.
For
example, if a reporter quotes a paragraph from an article you wrote online and that
reporter compares your opinion with that of other commentators, this is likely
permitted by the fair use doctrine without
the need to obtain your permission.
Be sure to
keep in mind that fair use is a very fact-sensitive defense to a copyright
claim. It is sometimes difficult for
producers, writers and content creators to determine beforehand whether a
particular use is in fact a fair use. For this reason, it is a good idea to seek
out a license before engaging in a use that might be a "maybe" fair
use.
For more information, visit the copyright office at http://www.copyright.gov/
Tifanie
Jodeh grants column recipients permission to copy and distribute this column
and distribute it free of charge, provided that copies are distributed for
educational and non-profit use, no changes or revisions are made, all copies
clearly attribute the article to its author and include its copyright notice.
