Determining the nature of the original work is the second element of the fair use test. It's a bit more straightforward than the transformational use test:
- What kind of work is the original? Is it fiction, which has a creative element to it? Or non-fiction but containing lots of analysis? Or is it more like a phone book or a database? The less creativity or analysis that went into the work, the less likely a court would be to find infringement. It's difficult to infringe the copyright in a telephone listing.
- Was the original work published? If it was unpublished then it will get a bit more protection, because it didn't have a chance to find its own market.
If you think about it, this makes sense. A set of facts on a page is just that: a set of facts. If there's nothing creative about it then it shouldn't be protected as such. That's true even if the set of facts took a lot of work or expenditure to collect. One of the leading cases on this topic, Feist v. Rural Telephone, addresses this topic: a phone listing is nothing more than a set of phone numbers and names, so even if collecting the list took a lot of work it's not able to be protected by copyright.
That doesn't mean there's no way to collect a set of facts. The board game Trivial Pursuit actually developed a very crafty method to do just this. Have you ever played a game of Trivial Pursuit and, on getting an answer to your question, said "that can't be right"? It's quite possible you were correct. The Trivial Pursuit card set contains certain questions for which the "right" answer on the card is actually not the correct answer in real life. Why would the game creators do that? Because a wrong answer, believe it or not, is a creative work. So anyone who copied the Trivial Pursuit question set and copied the wrong answers would be infringing. It would also be a great way to show quickly when someone just baldly copied your questions without thinking: because they would have your wrong answers as well as your right ones.
Okay, let's assume you're not making a board game. Here's two ways this applies to you:
- If you're taking your inspiration from a fictional work, make sure you're really paying attention to those other fair use tests. You'll have a lot more transformational work to do if you're working with fiction.
- But for a non-fiction work, there are only so many ways to tell your story. Imagine you're writing a history of World War II. Rommel invaded North Africa. He won a lot of battles, then he started losing because the Germans had their resources distracted and so he couldn't keep advancing. Those are just a series of facts. And there are only a limited number of ways to recount those facts. Yes, there will be creative turns of phrase and you need to be careful to avoid those, but at this point for anything before 1940 most authors will need to rely on other sources. The key is making your analysis your own.
This puts us halfway through the discussion of fair use. Next up: the amount and substantiality of the use. That comes tomorrow.
Note: while I've been posting this series, a great article showed up on io9 that goes through some fair use scenarios in the context of fan fiction. I strongly recommend you take a look at it also.
Legal Minimum post on transformational use:
Campbell v. Acuff-Rose Music:
Feist v. Rural Telephone:
io9 article on fan fiction