February 18, 2022

Celebrating Fair Use Week 2022

Unpacking the complex rules that govern U.S. copyright.

By UW Librarians Maryam Fakouri and Sally Pine

What is fair use?

This week we celebrate fair use, a doctrine of copyright law that facilitates scholarship, journalism, the arts, and innovation. At its core, the ultimate goal of copyright is to enrich the public by “promot[ing] the Progress of Science and useful Arts.” U.S. Const. Art. 1 §8. As an incentive to create works, creators have exclusive rights to their works for a limited time.  When that time has elapsed, works enter the “public domain,” the body of works that no longer belong to anyone and therefore are free for anyone to use.

The criteria for copyright protection in the U.S. are so easy to meet, you may not realize that we create new copyright-protected works on a near daily basis! Moreover,  a lot of what we make is automatically protected by copyright because the requirements for copyright protection in the U.S. are very easy to meet. In addition, copyright protections take a very long time to expire. (As of this writing, works published before 1927 in the U.S. are in the public domain.) Thus, many works are currently protected by copyright and will continue to be protected for many years to come. However, it’s not realistic to expect that students, researchers, critics, and anyone else who engages with creative works draw only from works that are at least 95 years old; that would stifle free speech and innovation.

An essential aspect of fair use is its flexibility; each situation must be evaluated individually. New cases are decided each year in this dynamic and evolving area of law.

Enter fair use, a vital limitation on the exclusive rights of copyright owners. It allows works to be used in certain contexts without formal permission from rights holders. An essential aspect of fair use is its flexibility; each situation must be evaluated individually. New cases are decided each year in this dynamic and evolving area of law. Fair use analyses all begin with this famous language in 17 U.S.C. §107:

[F]air use . . . 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 . . . 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.

While educational and research uses are favored, these uses must still be considered in light of all four factors. Ultimately, only judges decide whether a use is fair use and they explain the reasons for their decisions. To understand how fair use has been interpreted, we can examine some fair use decisions:

In Hosseinzadeh v. Klein (2017), Ethan and Hila Klein created a 14-minute “reaction video” to Hosseinzadeh’s sketch of a man pursuing a woman. The Kleins used about three minutes of Hosseinzadeh’s original five-minute video in their reaction piece.

1. The Kleins used the clips to illustrate their commentary and critique. This favored fair use.
2. Hosseinzadeh’s video was fictional. Because creative works are protected more than works that are largely factual, this factor leaned away from fair use.
3. The third factor was neutral. While the Kleins needed to use portions of the original to make their commentary, they used a considerable amount.
4. The Kleins transformed Hosseinzadeh’s original video so much that their “reaction video” was not a market substitute for the original.

In Authors Guild v. Google (2015), Google scanned millions of books and made the texts searchable online. Yet Google’s actions were held to be fair.

1. Google’s purpose was highly transformative. Searchers did word searches to find words in lengthy texts. Word matches were shown in the context of three-line snippets, so researchers could assess whether the word matches met their needs. This tool enabled textual analysis and fact checking in ways that are impossible using physical books. Also, Google’s algorithm permanently hid one tenth of the pages from view and one snippet from each page shown, making it impossible to reconstruct a book. The highly transformative nature of Google’s use outweighed any profit motive Google had for the search tool.
2. The scanned books were mixed in nature, although predominantly nonfiction. This factor was neutral in the analysis.
3. Although each book was scanned in its entirety, users could view only snippets of them. Altogether, the snippets revealed a small amount of the texts only after the snippets were painstakingly fit together.
4. Given the factors above, Google’s use had very little likelihood of market harm for the books it scanned.

For comparison, the use in Brammer v. Violent Hues (2019) was not fair. A company reproduced roughly one half of a photograph on a website to promote a film festival. (It is interesting to note that this decision reversed the lower court’s, which held the use was fair. Judges do not all think alike!)

1. The photo was used as-is to promote a for-profit film festival.
2. The photo was a highly creative work as Brammer made several artistic decisions about the composition and the exposure.
3. The company reproduced roughly one half of the photo, cropping it to show the most dynamic portion of the composition.
4. The photographer established there was a market for the work by showing that he had licensed it twice in exchange for payment. If other potential clients acted as Violent Hues did, the market for the photo would be harmed.

Tips and Tools

Fair use evaluations require us to slow down and think about our uses of materials in relation to the four factors. We have a growing body of precedents to guide us. In addition, these resources can prompt us to consider important aspects of our desired uses. The tools listed here can help us weigh the four factors in good faith. Please note that they do not provide legal advice.

• Fair use evaluator
• Index of fair use court decisions compiled by the U.S. Copyright Office
• Fair use guide with codes of best practices

If you feel your actions extend beyond fair use, you might adjust your actions to strengthen your fair use stance. For example, you might use less of a work than you first envisioned, or you may seek direct permission from a rights holder.

Additional Concerns

Fair use is a vital and evolving area of law, and it is important to acknowledge that it exists within a complex world of rights and technological controls. As technology makes it easy to copy and distribute works, rights holders use legal and technical tools to monitor uses of their works. Licenses detail how copyright-protected works may be used. (As examples, skim the terms of use for Netflix and  Disney+). Meanwhile, bots are used to detect copies of works—even if they may be examples of fair uses. Unfortunately, bots cannot make nuanced evaluations!

Conclusion 

Fair use has been in our federal copyright statute for nearly 50 years, but its history is older. Judges and lawmakers have long recognized the need to balance the rights of copyright holders with the rights of those who would draw upon their works, especially for socially beneficial purposes. It’s not a coincidence that educators, artists, journalists, innovators, and librarians rely on fair use so frequently; we all use copyright-protected works thoughtfully to promote the progress of science and the useful arts, just as the Constitution intends. So happy Fair Use Week 2022!

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