Copyright and Fair Use


Introduction

Most written stories, poems, art work, slogans, photos are copyrighted.  Understanding the relationship between Copyright Infringement and Fair Use is important, particularly if you are copying images and text from the websites for reposting or incorporation into other sites.  For a quick review of the copyright protectionin relation to patents and trademarks, please select the link to my article.  It may also be useful to review my article regarding the steps to register a copyright.  

Copyright protection arises at the time the work is originally created by the author.  It is recommended, however, that any important work you intend to post or publish be registered with the US Copyright Office.  It is a relatively easy and inexpensive process.

Discussion

Publication or copying copyrighted work can result in copyright infringement.  If the work is subject to US registration, the infringer (don’t let it be you!) may be subject to minimum statutory damages.  These minimum damages can be substantial.

Note that no marking is required to warn you that the work is subject of a registered copyright.

However the law provides some protection from incidental or relatively minor instances of copying copyrighted work.  This protection is termed fair use.

Fair Use 

As with most legal matters, there is no bright line distinguishing fair use from unpermitted infringing copying.  A general statement allows copying for purposes of criticism of the work being copied.  Copying is also allowed for commentary upon or parodying the work.  (Parody is mimicry or exaggeration of style for comic effect.)  Copying associated with news reporting, teaching or as part of scholarship or research is permitted. 

The use or copying is limited.  A teacher can copy a table or illustration from a copyrighted book for distribution to a class.  However, copying (including electronic copying or downloading) of an entire work (e.g., textbook) would be infringing use.  

Fair Use:  Transformative Use

The purpose of the copying is important, i.e., is the work being copied for educational purposes or news reporting in contrast for commercial entertainment for profit?  Most important is whether the person copying the work “transformed” the work in any way, e.g., did the person copying the work add new expression or meaning to the work. This can be adding new information, aesthetics, insight or understanding pertaining to the copied work.  Commentary or parody would likely be viewed as adding new (transformative) insight to the work.  As a general matter, use for education or scholarship is considered transformative.  Note it is not the work itself that is transformed but rather the purpose is transformative.

Note that use of copyrighted images in the creation of a collage of images was considered transformative and not prohibited infringement.  This included instances in which an entire image of the author’s work appeared in the collage. See Cariou v. Prince, 714 F.3d 694 (2d. Cir. 2013).  But it is critical that the person making the copy “imbues” the work “with a character different from that for which it was created”.  See TCA Television Corp v. McCollum, 839 F.3d 168 (2d. Cir. 2016).

Other Considerations

As suggested above, the ability to show that the purpose of the work was transformative is perhaps the most important consideration.  Other considerations of fair use include the subject matterof the work, i.e., copying a limited portion of a news broadcast versus a complete entertaining segment of video game.  

Also the extent of the copyingis relevant to determining whether the copying is merely fair use.  As suggested above, the copying of a table or illustration from a book would certainly be fair use but copying five chapters from a multi-volume history where the copied chapters cover a discrete portion of history would certainly not be fair use, even if for educational purposes.  

Another, but perhaps lesser consideration is the extent the copying deprives the original author of full exploitation of benefit or profit from the author’s work, i.e., market.  In a surprising case, creation of a sculpture from a photograph was deemed to be infringing.  The rationale was that the copying (transformation?) deprived the author (photographer) of an entire market for his work.  This case would seem to be an outlier since the creation of the 3-dimensional sculpture would be a transformation of the photographer’s original work.  It is a central tenet that a copyright protects the author’s embodiment of the idea, but not the idea itself.  (Contrast this with the scope of patent protection.) 

Perhaps a better example is the decision that copying an image as a “thumb nail” illustration of a website catalog is not infringement.  Creation of thumbnails do not deprive the author of a market for the author’s work. 

Conclusion

As the above illustrates, whether copying of a work constitutes copyright infringement versus protected fair use is determined on the facts of each case.  However limited use for education purposes, for news reporting or for offering commentary should be safe.  Also copying that transforms the copyrighted work should be protected as fair use.  The elements of transformative use, however, appear subjective.  Therefore caution is advised.  

© David McEwing, 2019