Fair use and unfair theft: how can a creator understand these rules?

It is a truth universally acknowledged that a single lawyer in possession of a great tort claim must be in want of a life.

If you've ever read a book in your life, you should recognize that statement as a riff on the first line of Jane Austen's "Pride and Prejudice". Am I allowed to use Jane Austen's work as a springboard for my own? Answering that question requires me to spend the next few posts (subject to interruptions by more newsworthy events) to explain one of the most commonly-invoked but least-understood aspects of copyright law: fair use.

In order to understand fair use, you need a quick overview of how copyright comes into existence in the first place:

1. The second something is fixed, it's got copyright protection. The only real exception is where something just contains no expressive idea, but that basically never happens.
2. If you want to use someone's copyrighted content to make a creative work of your own (technically called a derivative work), you need a license or a permission under the law.
3. If you don't have a license or a legal permission, you're infringing.
4. If you're infringing, then you need a defense against the infringement claim.

The major defense against infringement is fair use. Fair use is set out in section 107 of the Copyright Act (part 17 of the US Code for those of you keeping score at home). Here's the 4 major aspects to the fair use analysis:

1. Purpose and character of the use
2. Nature of the copyrighted work
3. Amount and substantiality of the portion being used
4. Effect of use on potential market for the original work

Note: outside the USA there's no such thing as fair use. It's called fair dealing. And there is a substantive difference between the two: fair dealing is a right, not a defense. That means it comes in at my #2: if you're fair dealing, you were never infringing. Why that matters relates to a legal doctrine called the burden of proof. In the USA, fair use is a defense and so the defendant has to prove that what they did is okay; if they can't then they lose. But in a fair dealing jurisdiction, it's the plaintiff's job to prove that what the defendant did isn't fair dealing, and if the plaintiff can't prove that then they lose. So even though the analysis is very similar, the result can be different.

Unfortunately, fair use is always a really fact-specific determination. And at the end of the day, fact-specific determinations allow courts to make their decisions based on criteria like: does the plaintiff seem like they were wronged? or does the defendant seem like a good guy? And that's unfortunate, because it means creators can never really have certainty on what uses of a pre-existing work are and aren't permitted.

So I'll spend a few posts going through this. One leading case on fair use relates to the 2 Live Crew song "Pretty Woman", which they intended to be a parody of Roy Orbison's "Oh, Pretty Woman". You can read the judgment linked below to find out whether that argument won the day, or you can read along for the next few days and I'll walk through the criteria in some depth. There's also a lot of good information on fair use at the Stanford University Copyright and Fair Use Center if you want additional information.

UPDATE: Now that the set of posts is finished, links are here:

• Purpose and character: http://bit.ly/Pj0UTS
• Nature of work: http://bit.ly/O1I1EJ
• Amount and substantiality: http://bit.ly/SNIPLG
• Effect on market: http://bit.ly/NKOGVo

LINKS:
Campbell v. Acuff-Rose Music
http://scholar.google.com/scholar_case?q=acuff-rose&hl=en&as_sdt=2,48&case=16686162998040575773&scilh=0
Stanford Fair Use information
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html