Friday, August 24, 2012

It's not okay just because it's free: three myths (and two truths) about fair use

[Note: this is part 4 of a 4-part series on fair use.]

The last portion of the fair use test, the effect on the original market for the work, is one of the most commonly-misunderstood elements of copyright law.

The test itself seems like it should be fairly straightforward but in fact it's not. The relevant text, "the effect of the use upon the potential market for or value of the copyrighted work", looks like it only addresses the specific use made in the specific context. But that's not what courts will actually look for: they will ask both whether the specific use that you're making of someone else's work is going to affect the potential market for or value of the work, but also what would happen if everyone started doing it.

That's right, judges are just like your mom.

Tuesday, August 21, 2012

Correcting two common mistakes about how much fair use is too much

[Note: This is part 3 of a 4-part series on fair use.]

Plagiarism makes the news all the time, and rightly so. When an author borrows from another author or a musician from another musician, this feels wrong if it happens without permission and it's a ripoff, but okay if it leads to something fresh and new. How can a creator know how much is too much to take?

I've previously addressed the first two parts of the fair use test: looking at whether the use is transformational and looking at the nature of the original work. The third element of the test requires you to consider the quantity and value of the portions of the original material that you're using in your new work.

The best way to explore what this means is to correct two commonly-made mistakes about this part of the test:

Monday, August 20, 2012

Two points on the nature of the original work and how they affect fair use

[NOTE: This is part 2 of a 4-part series on fair use.]

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:

  1. 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.
  2. 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.