How I Learned to Love FAIR USE… or how to bring a $300,000
lawsuit down to $0 if you're a library, archive, or nonprofit
educational institution
By Mary Minow, J.D.,
A.M.L.S.
When I give seminars to librarians on copyright,
the most popular question is: "What happens if we get sued?
How much money are we talking about?" Answer? In ever popular
lawyer-speak, "It depends." The good news for libraries, archives,
and nonprofit educational institutions, is that a good understanding
and application of Fair Use can reduce your liability down
to $0. This article aims to help you evaluate a given situation
involving the fair use of copyrighted materials.
"Fair Use?" , you say. "Absolutely. Everything
we do is Fair Use. That is, we think it's fair." That kind
of thinking won't go too far in court. Although Fair Use is
the grayest area of copyright law (I always color my PowerPoint
slides on Fair Use gray), 17 U.S.C. § 107 outlines criteria
including four specific factors that courts weigh to determine
if what you've done would lawfully be considered Fair
Use.
Copyright Infringement
When considering whether
or not you've infringed on someone's copyright,
you'll first want to make the case that
you are innocent of infringing which means
you should look at sections of U.S. copyright
law that directly protect libraries, archives
and some educational institutions. See
especially, 17
U.S.C. § 108 and §
110. If your use isn't covered (be
sure to also look through other user exceptions
from §
109 - § 122), you'll want to look
at Fair Use, the slipperiest defense in
copyright law, §
107 .
Q: Before we get to Fair Use, I'd like to know -- can
I go to jail if I unintentionally infringe on someone's copyright?
Only willful copyright infringement is a federal
crime, punishable by imprisonment, fines or both. If you willfully
copy or distribute by electronic or other means a work with
a retail value of $1,000 but less than $2,500, you could be
imprisoned up to one year and/or fined. See §
506. The terms go up if the infringement is greater.
The Digital Millennium Copyright Act added
criminal penalties to persons who circumvent (loose definition:
hackers) copyright protection systems or mess with copyright
management information. Not only must your actions be willful,
but there's a specific provision exempting nonprofit libraries,
archives, and educational institutions from criminal liability.
See §
1204. They may be accountable for civil remedies, although
there's a particularly odd provision that allows them to hack
copyright protection systems if done, "solely in order to
make a good faith determination of whether to acquire a copy
of that work…" See §
1201(d).
Q: How much money could I be sued for in a civil copyright
lawsuit?
A: If the lawsuit is for a work that has been
registered
at the Copyright Office, the damages can be quite stiff. A
copyright owner may elect to recover statutory damages under
§
504, even if she can't show any lost profits. Statutory
damages are amounts set by law. A copyright owner whose work
was registered with the U.S. Copyright Office before the infringement
(or within three months of publication) can elect to choose
statutory damages or actual damages. Actual damages (also
known as compensatory damages) are the dollar amount of any
demonstrable loss suffered because of the infringement. Most
copyright owners will choose statutory over actual damages
because there is less to prove in order to obtain payment.
If you're found to be an infringer (and don't have reasonable
ground to believe your use was Fair Use), statutory damages
are set by law at a minimum of $750 and a maximum of
$30,000 per infringement, "as the court considers just."
If the court finds that you've infringed on ten photographs
that have registered copyrights, for example, you may be facing
a $300,000 lawsuit. If the copyright owner can prove that
the infringement was committed willfully, the court has the
discretion to increase the damages up to $150,000 per
infringement. Further, the court may determine that the losing
party must pay the winner's costs and attorneys fees, under
§
505. On the other hand, if the infringer can prove that
she was not aware and had no reason to believe the act was
infringement, the court may reduce the award down to $200.
If you work for a nonprofit educational institution,
library, or archives and are acting within the scope of employment
the court can bring the statutory damage award down to $0,
even if you are found to be infringing copyright. For
this to happen, you must show that you believed and had reasonable
grounds for believing that your use was Fair Use
Fair Use
Q: What is Fair Use?
Fair Use is codified in U.S. Copyright law
at 17
U.S.C. § 107. It states that the Fair Use of a copyrighted
work for purposes such as criticism, comment, news reporting,
teaching, scholarship, or research, is not an infringement
of copyright.
The bad news is that even after careful consideration
whenever you try to figure out if what
you want to do is Fair Use you will most
likely still be left with a giant gray
area. The good news is that with some
study of the four nonexclusive factors
which form a framework to make your evaluations,
your good faith effort may help enormously
if you get sued.
The law lists four nonexclusive factors to
consider in determining whether a use is Fair Use:
FACTOR ONE: PURPOSE and Character of the
Use
Conditions Which Tend Toward Finding Fair
Use
+ Use is for nonprofit educational purposes
Note: Although it is quite helpful to be a
nonprofit library, archives or educational institution, the
purpose of the use should also be nonprofit educational.
+ Use is to create a new work with a different
purpose (called "transformative use")
Note: Of special interest to libraries, archives
and educational institutions is a recent 9th Circuit decision
that found this factor in favor of an operator of a visual
search engine. Arriba-Soft was sued by a professional photographer
whose photographs were copied (in thumbnail form). The court
said that the search engine was designed to "catalog and improve
access to images on the Internet," and was thus considered
a "transformative use" (i.e., it adds something new, with
a further purpose or different character, altering the first
with new expression, meaning, or message.) Further, the thumbnail
form made it unlikely that users would enlarge the images
for the original, artistic purpose because of the low quality.
Kelly
v. Arriba-Soft,
03 C.D.O.S 5888 (9th Cir. 2003).
Conditions
Which Tend Against Finding of Fair Use
- Use
is of a commercial nature
- Use
is not transformative
FACTOR
TWO: NATURE of the Copyrighted Work
Conditions
Which Tend Toward Finding Fair Use
+ The
work has a thin or weak copyright
Note:
Reference works, science, other works that are primarily factual
have elements that are not copyrightable.
+ The
work has already been published
Conditions
Which Tend Against Finding of Fair Use
- The
work has a strong copyright
Note:
Highly creative works, such as poetry, fiction, and art are
really pure expression, and as such enjoy greater protection.
- The
work is unpublished
Note:
This surprises some librarians, who keep rich local history
files, filled with unpublished letters, photographs etc. Yet
copyright law favors the right of the copyright owners (including
heirs) to make the decision whether or not to publish their
work.
FACTOR
THREE: AMOUNT and Substantiality of portion used in relation
to the copyrighted work as a whole
Conditions
Which Tend Toward Finding Fair Use
+
The smaller the amount copied the better
Note:
This is measured in proportion to the size of the original.
This was easier to measure in the print world than online.
+
Portion used is not "the heart of the work"
Note:
A classic example here is taking the key moment from the I
Love Lucy episode where Lucy is trying, in vain, to keep
up with a fast moving chocolate candy conveyer belt.
Conditions
Which Tend Against Finding of Fair Use
-
The more that is taken—either in proportional size or importance—the
more difficult it is to claim fair use.
FACTOR
FOUR: MARKET Effect (Including Potential Effect) on Value
of Copyrighted Work
Conditions
Which Tend Toward Finding Fair Use
+
There isn't a significant effect (including potential effect)
on the market for the original work
Note:
If you can demonstrate that your use doesn't
deprive the copyright owner of income,
you're more likely to persuade a judge
regarding this factor.
Conditions
Which Tend Against Finding of Fair Use
-
There is a market for the work
Note:
A 1994 Supreme Court decision says that the market factor
is only one of the four factors, and not more important. The
reality is that courts often weigh this factor much more heavily
than the other three so beware if your use undermines an existing
or potential market for the work.
Memory
Trick to remember the Fair Use Factors: PNAM
Purpose
Nature
Amount
Market
Q:
How will I know if what I'm doing is Fair Use?
Get sued
and get a court to determine your case. Sadly, unless your
facts match perfectly with a previous court case in your jurisdiction,
this is what you need to do. Remember, though, that if you
work for a nonprofit educational institution, library, or
archives and are acting within the scope of employment, your
statutory damages could go down to $0. You must show that
you believed and had reasonable grounds for believing that
your use was Fair Use. Keep track of your analyses, item by
item. A handy way to do this is to use the Fair
Use Checklist developed by Kenneth Crews at the Copyright
Management Center of Indiana University.
Q:
How do I find out more about how to handle a lawsuit against
me?
Most copyright
owners will send a "cease and desist" letter to you before
filing a lawsuit. A new joint project of the Electronic Frontier
Foundation and Harvard, Stanford, Berkeley, University of
San Francisco, and University of Maine law school clinics,
Chilling Effects Clearinghouse,
is incredibly helpful in understanding these letters and their
legal terminology. Samples of real "cease and desist letters"
are posted.
Another
important note is to check your institution's
insurance policy to make sure it adequately
covers copyright lawsuits. If it does,
be sure to contact your insurance company
before spending money on attorneys. In
a recent New York case, a sunglass company
paid some legal fees to a law firm it
had hired to litigate a patent infringement
case. Its insurance company would have
paid the fees if it had been approached
initially, but would not pay after the
fact. Darby
& Darby v. VSI, 701 N.Y.S.2d
50 (2000). For an overview of how to handle
a copyright infringement lawsuit against
you, including insurance, see Mark H.
Miller's Copyright
Infringement: What It Is; What to Do If
You're Accused of It (Jackson Walker
LLP: 2000).
Fair
use Summary |
|
LIKELY
YES |
LIKELY
NO |
PURPOSE |
Nonprofit
Create work +
with new
purpose
|
Commercial work has same purpose
as original
|
NATURE |
Reference,
Nonfiction
Published +
|
Fiction, Art
Music
Unpublished |
AMOUNT |
Small amt (relative to whole
original) +
|
Complete work
Heart of work
|
MARKET |
Doesn't
hurt
market of Original + |
Hurts market
or potential market of original |
Note:
Attribution—that is giving credit to the copyright owner—will
not relieve you of a claim of infringement.
More
Resources
The very
best sites for libraries, archives and nonprofit educational
institutions on fair use:
Kenneth
Crews, Copyright
Management Center of Indiana University
http://www.copyright.iupui.edu/fairuse.htm
****See
especially its Fair
Use Checklist that you can use to evaluate each item and
then keep on file to protect yourself at http://www.copyright.iupui.edu/checklist.htm****
Georgia
Harper, University of Texas Copyright Crash Course: Fair
Use
http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm
United
States Copyright Office.
http://www.copyright.gov/circs/circ21/pdf
Circular
21 Reproductions of Copyrighted Works by Educators and Librarians
includes excerpts from H.R. Rep. No. 94-1476, and some discussion
of S. Rep. No. 94-473, noting that the codification of Sect.
107 is intended to offer guidance to users, but the "endless
variety ofsituations
and combinations of circumstances that can rise in particular
cases precludes the formulation of exact rules in the statute.
The bill endorses the purpose and general scope of the judicial
doctrine of fair use, but there is no disposition to freeze
the doctrine in the statute, especially during a period of
rapid technological change. Beyond a very broad statutory
explanation of what fair use is and some of the criteria applicable
to it, the courts must be free to adapt the doctrine to particular
situations on a case-by-case basis. Section 107 is intended
to restate the present judicial doctrine of fair use, not
to change, narrow, or enlargeit in
any way." The Circular also reprints the Classroom Guidelines
(also found here),
noting that the purpose of the guidelines "is to state the
minimum and not the maximum standards of educational fair
use…" at http://www.copyright.gov/circs/circ21.pdf
APPENDIX
17
U.S.C. § 107 Limitations on exclusive rights: Fair use
Notwithstanding
the provisions of sections 106
and 106A,
the Fair Use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means
specified by that section, 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
whether the use made of a work in any particular case is a
Fair Use the factors to be considered shall include:
the purpose
and character of the use, including whether such use is of
a commercial nature or is for nonprofit educational purposes;
the nature
of the copyrighted work;
the amount
and substantiality of the portion used in relation to the
copyrighted work as a whole;
and the
effect of the use upon the potential market for or value of
the copyrighted work.
The fact
that a work is unpublished shall not itself bar a finding
of Fair Use if such finding is made upon consideration of
all the above factors.
1Also, everybody seems to
throw the term "Fair Use" around
casually at parties. With a little learning,
you can be the only one there to use it
correctly. This might even help you land
your next job.
2A jury
recently awarded a photographer $400,000
from the nonprofit National Geographic
Society when it digitized four photographs
for its, "108 Years of National Geographic
on CD-ROM" collection, Greenberg v.
National Geographic Society ,U.S.
District Court, Miami FL (March 2003).
See American Society of Media Photographers,
Inc.
National Geographic says it will appeal
the decision, which was already on remand
from an 11th Circuit opinion
in favor of the photographer. Greenberg
v. National Geographic Society,
244 F.3d 1267
(11th Cir. 2001).
3 Snippets like
this license for small fortunes. If you
happen to find someone else has blatantly
posted it on the Internet, stop and
turn away. These works are strongly
protected by copyright and the fact that
you are not the original thief has no
bearing.
4 Campbell
v. Acuff-Rose Music, 510 US 569 (1994).
5
Okay, maybe thatís not the worldís best
memory trick, but itís worked for me and
some folks I've shared it with for years.
Maybe you can gussy it up, like "Please,
Not Another Muffin!" One workshop participant
changed the "M" to and "E", did a little
rearranging and suggested PANE
- purpose, amount, nature and economic
impact. Then you can
tell yourself that Fair Use analysis is
a PANE. If it is, itís a muddy pane.
|