The Proper Application of Fair Use
moar funny pictures
In tuth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.
Justice Story in Emerson v. Davies, 8 F.Cas. 615, 619 (No. 4,436) (CCD Mass.1845).
One of the terms that has been bandied about during and post Savage Gate is “fair use.” In the Signet response to my inquiry regarding the allegations against Cassie Edwards regarding copying, I received a strange and bit confusing reply:
The copyright fair-use doctrine permits reasonable borrowing and paraphrasing of another author’s words, especially for the purpose of creating something new and original. Also, anyone may use facts, ideas and theories developed by another author, as well as any material in the public domain. Ms. Edwards’s researched historical novels are precisely the kinds of original, creative works that this copyright policy promotes.
This mixing of public domain and fair use is a bit misleading and it seemed to me that there was quite a bit of confusion about what fair use is. I’ve seen it used in terms of whether use is fair but the “fair use doctrine” has a specific legal meaning and it is not a defense to plagiarism but rather a defense or an excuse for an infringement of someone’s legal copyright.
Copyright Law v. Public Domain
The term “fair use” is derived from a statutory defense in the Copyright Act of 1976. The Copyright Act gives a creator of an original work, such as an author, a set of exclusive rights to distribution which includes copying. When an author signs a contract with a publisher, that author gives up a certain part of her exclusive rights in exchange for money and other acts of publishing (i.e. advertising, access to distribution channels, registering of the copyright, etc). For the period of time set by the contract, the publisher is then the “owner” of the rights sold to them.
Ordinarily it is the right for a publisher to make as many copies as it can and sell them throughout a geographical region (i.e. US, Great Britain, Worldwide, in e form, in audible form, etc.). The Copyright Act and its subsequent amendments grants the creator of a work these exclusive rights for a period of time (time of death + 70 years). Once the time period expires, the work enters “public domain” and the public can do with it what it wishes (i.e., Mobile Read users are busy coding public domain works for ebook readers).
Fair Use Excuses Infringement
It is important to note that the fair use is an exception to the exclusive right of ownership. In other words, unless you are infringing on someone else’s copyright, the fair use doctrine has no applicability.
To invoke the usage of “fair use” is to admit that you have infringed but that the infringement is excused because it falls under the “fair use doctrine.” The usage of it by Penguin in its statement is a bit curious because on the one hand the statement says the use is “fair use” implying that there was infringement. The second part, then, invokes public domain concepts.
If you copy a public domain work, you are not violating any copyright and thus are in no need of the “fair use doctrine.” This is part of the legal v. ethical dichotomy that exists between copyright infringement plagiarism. Because the “fair use doctrine” excuses only copyright infringement, it is completely inappropriate to use that as a defense to plagiarism. No one owns the copyright of public domain works, thus the use need not be measured by the copyright rules. (Hence the “public” of “public domain”).
Definition and Purpose of Fair Use
The specific statutory provision is the contains the Fair Use defense is § 107 of the Copyright Act of 1976 which states:
Notwithstanding the provisions of section 106, 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-
(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.
Under the fair use doctrine, individuals can use copyrighted material without the permission or consent of the original rights holder. The purpose of the fair use limitation is to promote creativity which is the underlying reason for the Copyright Act which is “the Progress of Science and useful Arts.”
History of Fair Use
There are essentially two kinds of law: common law and statutory law. Statutory law is the laws that are made by the legislature and signed by the governor or the President. Common law is law that is developed through the opinions of judges.
The fair use doctrine stems from judicial exceptions carved out beginning in the 19th century for limited uses of copyrighted work. Usage would be excused if the copied portion was small and was for a “socially beneficial purpose.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1105-25 (1990). In 1976, Congress transformed the judicial doctrine of fair use into a statutory one but the courts still rely on the body of judge made law that stems from the 1850s.
Determining Fair Use (applying the principles):
Determining what is fair use is a balancing test. If you think of the scales of justice, the courts weigh the rights of the copyright owner on one side and the public use on the other. The goal is that the rights are balanced against the original purpose: fostering creativity and original thought.
Each instance of “fair use” is determined on its own facts, in a case by case basis (which is why you can’t say that fan fiction is strictly illegal or infringing. Some fan fiction that copies from an original composition may very well be fair use).
In Savage Gate, one book could be said to have been “fair use” and another infringing. In examining the principles of fair use, I am going to use two books and two sources: Paul Tolme’s article about ferrets and Savage Bear and Oliver La Forge’s Laughing Boy and Savage Dream. Because it is a rather complex topic, I’ll address the four factors in different posts.
1. Purpose and Character of Use
Purpose and character of use can be distilled into two major categories (this is very broad and can include other meanings but for the purposes of this article I am simplifying)
a. Transformative nature
b. Commercial use
a. Transformative nature.
One of the most recent rulings on the fair use doctrine was the 1994 case involving 2 Live Crew’s remake of “Oh, Pretty Woman.” The remake, Pretty Woman, was originally sent to Acuff-Rose Music, Inc., the owner of the rights to the song penned by Roy Orbison and William Dees, with a request for permission and an offer to pay licensing fees. Acuff-Rose refused to agree to the parody but 2 Live Crew proceed to release “Pretty Woman” in the summer of 1989. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
Acuff-Rose brought suit against 2 Live Crew for infringement. At the beginning of the opinion, Justice Souter admits that but for the fair use doctrine, 2 Live Crew would be infringers. 510 U.S. at 574. But the fair use doctrine allows the use of copyrighted material, without the permission and consent of users, if the material is transformative. The very nature of parody is the copying or imitation of an original work (as opposed to satire or some other nature of commentary). This does not mean that all parody is exempt from infringement claims. Nor does the success of a parody mean it is fair use. Yankee Publishing Inc. v. News America Publishing, Inc., 809 F.Supp. 267, 280 (SDNY 1992) (Leval, J.) ("First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed.")
The test for how much of the original work is fair use for a parody is the term “conjure up” (real test, not pulling your leg here). The parody must “conjure up” enough of the original work to make the object of criticism recognizable. At some point, though, usage of the original loses its parodic quality and instead becomes a substitute for the original and then loses its “fair use” protection.
The purpose of the use by Ms. Edwards is to add authenticity to her books. In the media blurbs, she is cited as bringing authentic native indian culture into her works. Her career seems to be built upon her writing of historical romances featuring “Indian lore.” Edwards did not mean to parody or satire and therefore wasn’t transformative in that manner.
On the other hand, Edwards fictional novels of Native Indian romance was not intended to supplant Paul Tolme’s articles on ferrets. There is nothing about Savage Bear that adds new meaning or different character to Tolme’s work. It is used as Tolme used it, a narrative on the activities, backgrounds, and habits of ferrets. There was no additional information about ferrets that Edwards imparted to her readers. The ferret article was not a launching pad for additional research and insights.
In regard to Laughing Boy, however, I would argue that authors of historical fiction would find a decreasing market share if other fiction authors were allowed to incorporate fictional prose from one to another. It is far less transformative from fiction to fiction than it is from non ficton to non fiction although, as the Supreme Court noted in the Harper Row case, “Creation of a nonfiction work, even a compilation of pure fact, entails originality." Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 539 (1985)
b. Commercial use
Sony Corp case is often cited for the following statement as it relates to commercial use:
Although not conclusive, the first factor requires that "the commercial or nonprofit character of an activity" be weighed in any fair use decision…. [A]lthough every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter.
Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 448-49, 451 (1984).
While the Supreme Court’s edict regarding commercial use seems absolute, it has not been applied in that manner. In Acuff Rose case, the Court evinced a certain change of heart saying “If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities "are generally conducted for profit in this country” Acuff-Rose, 510 U.S at 584.
But when the commentary or use of the copyrighted material does not address the substance or style of the original work or the “the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.” Id. at 580.
Because Edwards use of the copyrighted material, both Tolme’s work and the work of Laughing Boy, lack any kind of commentary for education purposes, the claim of fairness is diminished. Edwards clearly relied on works from Tolme and La Forge to enhance the authenticity and sound of her own books, to distinguish her own books from other Native Indian works and possibly even other historical novels. In using word for word lifting of the original passages, Edwards “avoids the drudgery in working up something fresh.”
For example, in Dr. Seuss Enterprises, L.P. v. Penguin Books USA, 109 F.3d 1394 (9th Cir. 1997), Seuss challenged a pending Penguin publication involving the retelling of OJ Simpson’s trial in Seuss verse. Even though none of the original words were copied, the stanza, meter and STYLE of the original work was. The 9th Circuit found the Penguin publication to be infringing because the work and illustrations “simply retell the Simpson tale. Although The Cat NOT in the Hat! does broadly mimic Dr. Seuss’ characteristic style, it does not hold his style up to ridicule. The stanzas have "no critical bearing on the substance or style of" The Cat in the Hat.” Id. at 1401.
Similarly, Edwards makes no challenge or criticism of the style, prose, contents of either Tolme’s work or the work of La Forge in Laughing Boy.
Further, "crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price." Id.
It is arguable that the Edwards works are not transformative in anyway, not undertaken for purposes of criticism or commentary, offering no educational purpose that the original works did not offer, and that the Edwards usage was to increase the commercial viability of her own work. My opinion is that this factor weighs against “fair use” but there are three other factors to measure.
Next week: Blogger ethics and then returning to fair use with factor no. 2: nature of the use.