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TUCoPS :: Cyber Law :: claw2.txt

Copyright Law FAQ Part 2





Posted-By: auto-faq 2.4
Archive-name: Copyright-FAQ/part2

FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.0)
Part 2 - Copyright Basics.

Copyright 1993 Terry Carroll
(c) 1993 Terry Carroll


This article is the second in a series of six articles that 
contains frequently asked questions (FAQ) with answers relating to 
copyright law, particularly that of the United States.  It is 
posted to the usenet misc.legal, misc.legal.computing, and 
misc.int-property newsgroups monthly, on or near the 17th of each 
month.  The FAQ maintainer is currently investigating the 
requirements for posting the FAQ in the news.answers and related 
newsgroups.

The most current copy of the FAQ is always available for anonymous 
ftp from charon.amdahl.com [129.212.33.1], in the directory 
/pub/misc.legal/Copyright-FAQ, filenames part.1 - part.6.

If you do not have direct access to FTP, you can use the FTP mail 
service offered by the DEC Western Research Laboratory to obtain a 
copy by mail [note: I have been unable to get this to work - once 
the FAQ is set up for *.answers, it will be available for email 
transfer by way of the rtfm.mit.edu mail-server].  To do this, 
send an email message to ftpmail@decwrl.dec.com with the following 
commands in the body of your message:

   connect charon.amdahl.com
   get /pub/misc.legal/Copyright-FAQ/part.1
   get /pub/misc.legal/Copyright-FAQ/part.2
   get /pub/misc.legal/Copyright-FAQ/part.3
   get /pub/misc.legal/Copyright-FAQ/part.4
   get /pub/misc.legal/Copyright-FAQ/part.5
   get /pub/misc.legal/Copyright-FAQ/part.6
   quit

For further information on the FTPmail service, send an email 
message to ftpmail@decwrl.dec.com with a single command "help" in 
the body of your message.


DISCLAIMER - PLEASE READ.

This article is Copyright 1993 by Terry Carroll.  It may be freely 
redistributed in its entirety provided that this copyright notice 
is not removed.  It may not be sold for profit or incorporated in 
commercial documents without the written permission of the 
copyright holder.  Permission is expressly granted for this 
document to be made available for file transfer from installations 
offering unrestricted anonymous file transfer on the Internet.  
Permission is further granted for this document to be made 
available for file transfer in the Legal Forum and Desktop 
Publishing Forum data libraries of Compuserve Information 
Services.  This article is provided as is without any express or 
implied warranty.  Nothing in this article represents the views of 
Amdahl Corporation, Santa Clara University, or the Santa Clara 
Computer and High Technology Law Journal.

While all information in this article is believed to be correct at 
the time of writing, this article is for educational purposes only 
and does not purport to provide legal advice.  If you require 
legal advice, you should consult with a legal practitioner 
licensed to practice in your jurisdiction.

Terry Carroll, the FAQ-maintainer, is a computer professional, and 
is currently (7/93) a student in his final year at Santa Clara 
University School of Law and Editor-in-Chief of the Santa Clara 
Computer and High Technology Law Journal.

If you have any additions, corrections, or suggestions for 
improvement to this FAQ, please send them to one of the following 
addresses, in order of preference:

  tjc50@juts.ccc.amdahl.com
  tcarroll@scuacc.scu.edu
  71550.133@compuserve.com

I will accept suggestions for questions to be added to the FAQ, 
but please be aware that I will be more receptive to questions 
that are accompanied by answers.  :-)


FAQ ORGANIZATION.

The following table indicates the contents of each of the parts of 
the FAQ.

  Part 1 - Introduction (including full table of contents).
  Part 2 - Copyright basics.
  Part 3 - Common miscellaneous questions.
  Part 4 - International aspects.
  Part 5 - Further copyright resources.
  Part 6 - Appendix: A note about legal citation form, or, "What's
           all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?"

TABLE OF CONTENTS (for this part).

Part 2 - Copyright Basics.

2.1) What is a copyright?
2.2) What is "public domain?"
2.3) I just wrote a great program/novel/song/whatever.  How can I
     get a copyright on it?
2.4) How long does a copyright last?  Does it need to be renewed?
2.5) What advantages are there to registering my work with the
     Copyright Office?
2.6) How can I register a copyright with the U.S. Copyright
     Office?
2.7) What advantages are there to including a copyright notice on
     my work?
2.8) Can I ever use a copyrighted work without permission of the 
     copyright holder, or "What is 'fair use?'"
2.9) Fair use - the legal basis of the doctrine.
2.10) [reserved.]


2.1) What is a copyright?

A copyright is a right of intellectual property granted to authors 
whereby they obtain, for a limited time, certain exclusive rights 
to their works.  In the United States, copyright is exclusively 
federal law, and derives from the "copyright clause" of the 
Constitution (Art. 1, sec. 8, cl. 8), which provides Congress with 
the power "to promote science and the useful arts, by securing for 
limited times to authors ... the exclusive right to their ... 
writings."

Copyright protects only an author's original expression.  It 
doesn't extend to any ideas, system or factual information that is 
conveyed in a copyrighted work, and it doesn't extend to any pre-
existing material that the author has incorporated into a work.  
17 U.S.C. 102(b), 103.

The standard for originality is very low.  "Original" in this 
context means only that the work has its origin in the author.  
There is no requirement that the work be different from everything 
that has come before: it need only embody a minimum level of 
creativity and owe its origin to the author claiming copyright.  
To use an extreme example, if two poets, each working in total 
isolation and unaware of one another's work, were to compose 
identical poems, both of the poems would meet the originality 
requirement for purposes of the copyright statute.  Feist 
Publications, Inc. v. Rural Telephone Service Company, Inc., 111 
S.Ct. 1282, 1287-88 (1991).

In the United States, these seven rights are recognized: 

   1) the reproductive right: the right to reproduce the work in
      copies;
   2) the adaptative right: the right to produce derivative works
      based on the copyrighted work;
   3) the distribution right: the right to distribute copies of
      the work;
   4) the performance right: the right to perform the copyrighted
      work publicly;
   5) the display right: the right to display the copyrighted work
      publicly;
   6) the attribution right (sometimes called the paternity
      right): the right of the author to claim authorship of the
      work and to prevent the use of his or her name as the author
      of a work he or she did not create;
   7) the integrity right: the right of an author to prevent the
      use of his or her name as the author of a distorted version
      of the work, to prevent intentional distortion of the work,
      and to prevent destruction of the work.

                                 17 U.S.C. 106, 106A.

Not all of these rights apply to all types of works.  For example, 
the display right applies to literary, musical, dramatic and 
choreographic works, pantomimes, and motion pictures and other 
audiovisual works.  It does not apply to sound recordings and to 
architectural works.  The attribution right and the integrity 
right apply only to works of visual art.

Also, not all rights have the same duration: in the U.S., rights 
1-5 normally have a duration of the author's life plus 50 years, 
while rights 6-7 endure only for the life of the author.

These rights are not unbounded, and in the U.S., sections 107 
through 120 of the copyright law catalog a series of restrictions 
on the rights.  Some of these restrictions are discussed elsewhere 
in the FAQ (see, e.g., sections 2.8, 2.9, and 3.7).

And, by the way, many persons erroneously spell it "copywrite," 
apparently because of the association with written material.  The 
correct word is "copyright."  It derives from an author or 
publisher's right to the copy (copy here being used in the sense 
that it is used in the newspaper trade: the text of an article).


2.2) What is "public domain?"

In contrast to copyright is "public domain."  A work in the public 
domain is one that can be freely used by anyone for any purpose.

It used to be that if a work was published without notice, it lost 
all copyright, and entered the public domain.  That's no longer 
true, and now public domain is more the exception than the rule.

There are still a number of ways that a work may be public domain.

 - The copyright may have expired (see section 2.4).

 - The work might be a work of the U.S. Government; such works
   can't be copyrighted (see section 3.6).

 - The work might be one that can't be copyrighted.  For example,
   titles, names, short phrases and slogans can't be copyrighted
   (37 C.F.R. 202.1(a)).  Note, however, they can be trademarks.
   As far as copyright law is concerned, they're public domain,
   but as far as trademark law is concerned, they might be
   protected.

 - The copyright might have been forfeited.  For example, the work
   may have been published without notice prior to the change in
   the law that eliminated the notice requirement (March 1, 1988,
   the effective date of the Berne Convention Implementation Act,
   PL 100-568, 102 Stat. 2853).

 - The copyright might have been abandoned.  This is pretty rare.
   Abandonment requires that the copyright holder intend to
   abandon the copyright, and generally requires an unambiguous
   statement or overt act on the part of the copyright holder that
   indicates his or her intent to dedicate the work to the public
   domain.  National Comics Pub. v. Fawcett Pub., 191 F.2d 594,
   598 (2d Cir., 1951).  A statement that anyone who wishes to may
   reproduce, perform, or display the work without restrictions
   might be sufficient.  Simply posting it on a computer network
   is not abandonment.

There is a common belief that if someone infringes a copyright, 
and the copyright owner does not sue or otherwise put a stop to 
the infringement, the copyright is lost and the work goes into the 
public domain.  There is some pre-1988 law on this (e.g., Stuff v. 
E.C. Publications, 432 F.2d 143 (2d Cir., 1965) and Transgo v. 
Ajac Transmission Parts, 768 F.2d 1001 (9th Cir. 1985)), but it 
seems to derive mostly from the fact that the copyright holder had 
acquiesced in the publication of the work without notice back when 
notice was a requirement.  It was the publication without notice, 
and not the lack of enforcement, that actually worked to put the 
work in the public domain.  This is forfeiture of copyright, not 
abandonment.  Because the notice requirement is now gone from 
copyright law, these cases don't have much weight today.

I can't find anything that supports the idea that failure to 
assert a copyright against an infringer can alone lead to placing 
the work in the public domain (if you have any authoritative 
information on this, please drop me a note at one of the addresses 
listed in the introduction).  Of course, circumstances may be such 
that the ability to sue a particular infringer might be waived 
(e.g., a statute of limitations may expire (see section 3.4), or 
if the infringer has reasonably relied to his or her detriment on 
the copyright holder's failure to sue, the doctrine of laches may 
bar a suit), but that's only with respect to that particular 
infringer, and does not affect the status of the copyright with 
respect to others.

Sometimes you'll see a program on the network accompanied by a 
statement like "This program is public domain.  It may be freely 
distributed, but you may not charge more for it than the cost of 
the media."  Statements like these are contradictory.  If the 
program is public domain, you can do whatever you want with it, 
including charging whatever you want (although you might not get 
it).  In this example, what the programmer really wants to do is 
to retain the copyright, but provide a non-exclusive license to 
copy and distribute the work, with a condition on the license that 
only the cost of the media may be charged for it.  In this case, 
where the programmer has, in two consecutive sentences, both 
declared the work to be public domain and asserted a copyright in 
the work, it's unpredictable whether a court would interpret this 
as abandonment.

If there is any restriction upon the use of the work, even the 
restriction that it cannot be sold, the work is not public domain.  
Rather, it's copyrighted, and the restrictions are essentially 
limitations on a licensee using one or more of the exclusive 
rights described above.  For example, the restriction that a work 
may only be given away for free is a limitation using the 
distribution right.

Once a work is in the public domain, whether by expiration of 
copyright or by expressly being dedicated to the public domain by 
its copyright holder, it can never again regain copyrighted 
status.


2.3) I just wrote a great program/novel/song/whatever.  How can I 
get a copyright on it?

Good news.  You already have.  In the United States, as in most 
nations, a work is copyrighted as soon as it is created:

   Copyright protection subsists . . . in original works of
   authorship fixed in any tangible medium of expression, now
   known or later developed, from which they can be perceived,
   reproduced, or otherwise communicated, either directly or with
   the aid of a machine or device.  17 U.S.C. 102(a).

and,

   A work is "fixed" in a tangible medium of expression when its
   embodiment in a copy or phonorecord, by or under the authority
   of the author, is sufficiently permanent or stable to permit it
   to be perceived, reproduced, or otherwise communicated for a
   period of more than transitory duration.  17 U.S.C. 101.

What this means in simple terms is that as soon as you've created 
your original work, it's copyrighted.  Because of the "either 
directly or with the aid of a machine or device" provision, it 
doesn't matter whether you've printed it out, or if it's only on 
your hard drive or floppy disk.

You don't need any special formalities, such as registering the 
work with the Copyright Office, or providing a copyright notice 
(notice stopped being a requirement when the U.S. signed the Berne 
Convention and enacted Berne Convention Implementation Act in 
1988; see section 4.1 for more information).

That being said, you might want to register the work and provide a 
copyright notice anyway.  There are certain advantages to doing so 
(see sections 2.5 and 2.7).


2.4) How long does a copyright last?  Does it need to be renewed?

Generally, for works created after January 1, 1978, a copyright 
lasts for fifty years beyond the life of the work's author, after 
which it lapses into public domain.  17 U.S.C. 302(a).  If the 
work is prepared by two or more authors (a "joint work"), its 
copyright lasts for fifty years after the last surviving author 
dies.  17 U.S.C. 302(b).  For anonymous and pseudonymous works, 
and for works made for hire, copyright exists for 100 years from 
the date of creation, or 75 years from the date of first 
publication, whichever comes first.  17 U.S.C. 302(c).  No renewal 
is necessary or permitted.

For works to which the attribution right and integrity right apply 
(see section 2.1), these rights endure only for the lifetime of 
the author.  17 U.S.C. 106A(d).

For works created between 1950 and 1978, copyright lasts for 75 
years from date of publication.  17 U.S.C. 304(a).  Formerly, 
renewal was required after 28 years; renewal was made optional in 
June 1992 by P.L. 102-307, 106 Stat. 264.  If the work was created 
but not published prior to 1978, its copyright duration is 
calculated as if it had been created on January 1, 1978.  17 
U.S.C. 303.

For works created between 1922 and 1950, the copyright lasted for 
28 years, renewable for another 28 (a total term of 56 years).  If 
the copyright was not renewed, the work lapsed into public domain.  
In practice, all copyrights granted prior to 1937 lapsed at the 
latest in 1992 and are now in public domain.  Copyrights granted 
between 1937 and 1950 continue to exist only if they were renewed, 
and expire between 1993 and 2006.


2.5) What advantages are there to registering my work with the 
Copyright Office?

In order to sue for infringement, with some exceptions, your work 
must be registered with the Copyright Office.  However, you may 
register after the infringement occurs, as long as it's before 
filing your lawsuit.

The advantage to registering prior to infringement is that it 
allows you some additional remedies that aren't available if you 
registered after infringement: namely, statutory damages and 
attorney's fees.  17 U.S.C. 412.

"Statutory damages" are damages specified in the statute, as 
opposed to "actual damages," which are damages that you can 
demonstrate in court that you actually suffered.  If you 
registered your work prior to infringement, you can skip showing 
any actual damage, and just elect to receive statutory damages.  
17 U.S.C. 504(a).

Statutory damages for copyright infringement are $500 - $20,000, 
as determined by the judge.  If the infringer proves that he or 
she was not aware and had no reason to believe that his or her 
acts constituted infringement, the court may lower damages to as 
low as $200 per infringement.  On the other hand, if the plaintiff 
proves that the defendant's infringement was  "committed 
willfully," the judge may award damages to as high as $100,000 per 
infringement.  17 U.S.C. 504(c).

In deciding whether to register your work, you must weigh the 
probability of an infringement action (and the advantages of 
attorney's fees and statutory damages in such an action) against 
the $20 cost of registration.

CAVEAT:  On February 16, 1993, the Copyright Reform Act of 1993 
was introduced in both houses of the 102nd Congress (H.R. 897 in 
the House of Representatives and S.373 in the Senate).  If the 
bill passes, much of the information in this entry will be 
rendered incorrect.  Specifically, the bill would, among other 
things, remove the requirement for registration prior to bringing 
suit, and would remove the restrictions on statutory damages that 
are described above.


2.6) How can I register a copyright with the U.S. Copyright 
Office?

To register a copyright, file the appropriate form with the U.S. 
Copyright Office, including the payment for registration costs 
($20).

For most types of work being published in the United States, two 
copies of the work being registered must be deposited with the 
Copyright Office for the use of the Library of Congress.  Strictly 
speaking, the deposit is not a requirement for copyright.  
However, failing to make the deposit at time of publication can 
result in fines.  Some works are exempt from the deposit 
requirement.

Registration forms may be ordered by calling the Copyright Office 
Hotline (see section 5.1).  When the answering machine answers, 
leave a message with your name and address, identifying the 
material you are ordering.  Ask for the form either by form 
number, or by Copyright Office Information Package number.  A 
Copyright Office Information Package is a collection of 
information on registering copyright for a particular type of 
work.  It includes the appropriate forms, instructions for 
completing them and other useful information.

Here is a list of commonly requested forms and Copyright Office 
Information Packages, arranged by type of copyrighted work:

 - Books, manuscripts and speeches and other nondramatic literary
   works:  Form TX, Package 109
 - Computer programs: Form TX, Package 113
 - Music (sheet or lyrics): Form PA, Package 105
 - Music (sound recording): Form SR, Package 121
 - Cartoons and comic strips: Form VA, Package 111
 - Photographs: Form VA, Package 107
 - Drawings, prints, and other works of visual arts: Form VA,
   Package 115
 - Motion pictures and video recordings: Form PA, Package 110
 - Dramatic scripts, plays, and screenplays: Form PA, Package 119
 - Games: Form TX, Package 108


2.7) What advantages are there to including a copyright notice on 
my work?

As noted in section 2.3, under U.S. law, a work is copyrighted as 
soon as it is created.  No notice is required to retain copyright.  
While most of the world has operated this way for some time, this 
is a comparatively recent change in U.S. copyright law, as of 
March 1, 1988, the effective date of the Berne Convention 
Implementation Act, PL 100-568, 102 Stat. 2853 (See sections 4.1 
and 4.2 for a discussion of the Berne Convention).

Although notice is no longer a requirement, there are still some 
sound reasons for using one anyway.

If you include a copyright notice on a published copy of your work 
to which the defendant in an infringement suit had access, he or 
she may not plead "innocent infringement" (i.e., that he or she 
was not aware and had no reason to believe that his or her acts 
constituted infringement, the so-called "innocent infringement" 
defense) in mitigation of actual or statutory damages.  17 U.S.C. 
401(d), 402(d).

Unlike the decision of whether to register your work, this is a 
no-brainer, since it's simple and free: just include a notice on 
every published copy of the work.

A proper copyright notice consists of three things: 1) the letter 
"C" in a circle (called, logically enough, the "copyright 
symbol"), or the word "Copyright," or the abbreviation "Copr."; 2) 
the year of first publication; 3) the name of the copyright owner.  
17 U.S.C. 401(b).

Using "(C)" in place of a copyright notice is not a good idea.  To 
the best of my knowledge, no court has expressly ruled one way or 
another whether "(C)" is a sufficient substitute for a copyright 
symbol.  One case, Videotronics v. Bend Electronics, 586 F.Supp. 
478, 481 (D. Nev. 1984), implies that it is not sufficient; 
another, Forry v. Neundorfer, 837 F.2d 259, 266 (6th Cir., 1988), 
implies that it might be.  While courts are generally lenient in 
allowing for what makes up a valid notice, it's best to be 
squarely within the statute.  If you can't make a copyright 
symbol, either spell the word out, or use the "Copr." 
abbreviation.

As a side note with regard to international protection, the 
Universal Copyright Convention requires that, at a minimum, all 
signatory nations that require notice must accept the C-in-a-
circle variant; it does not provide a provision for a spelled out 
variant.  On the other hand, most nations that have signed a 
copyright treaty are signatories to the Berne Convention, which 
forbids requiring a notice as a condition to copyright.  See 
section 4.1 for details.

For a sound recording, the notice requirement is similar, except 
that it uses the letter "P" (for "Phonorecord") in a circle, plus 
the year and owner name.  17 U.S.C. 402(b).  The statute does not 
provide a spelled out alternative to the P-in-a-circle.


2.8) Can I ever use a copyrighted work without permission of the 
copyright holder, or "What is 'fair use?'"

In any analysis of copyright, it's important to remember the law's 
constitutional purpose: to promote science and the useful arts.  
"Fair use" is a doctrine that permits courts to avoid rigid 
application of the copyright statute when to do otherwise would 
stifle the very creativity that copyright law is designed to 
foster.  The doctrine of fair use recognizes that the exclusive 
rights inherent in a copyright are not absolute, and that non-
holders of the copyright are entitled to make use of a copyrighted 
work that technically would otherwise infringe upon one or more of 
the exclusive rights.  Although fair use originated "for purposes 
such as criticism, comment, news reporting, teaching, ... 
scholarship, or research," it also applies in other areas, as some 
of the examples below illustrate.  However, courts seem more 
willing to accept an assertion of fair use when the use falls into 
one of the above categories.

Perhaps more than any other area of copyright, fair use is a 
highly fact-specific determination.  Copyright Office document 
FL102 puts it this way: "The distinction between 'fair use' and 
infringement may be unclear and not easily defined.  There is no 
specific number of words, lines, or notes that may safely be taken 
without permission.  Acknowledging the source of the copyrighted 
material does not substitute for obtaining permission."

The document then quotes from the 1961 Report of the Register of 
Copyrights on the General Revision of the U.S. Copyright Law., 
providing the following examples of activities that courts have 
held to be fair use:
 
 - Quotation of excerpts in a review or criticism for purposes of 
   illustration or comment;
 - Quotation of short passages in a scholarly or technical work 
   for illustration or clarification of the author's observations;
 - Use in a parody of some of the content of the work parodied;
 - Summary of an address or article with brief quotations, in a 
   news report;
 - Reproduction by a library of a portion of a work to replace 
   part of a damaged copy;
 - Reproduction by a teacher or student of a small part of a work 
   to illustrate a lesson;
 - Reproduction of a work in legislative or judicial proceedings 
   or reports;
 - Incidental and fortuitous reproduction in a newsreel or 
   broadcast, of a work located in the scene of an event being 
   reported.

Document FL102 is included in Copyright Office information kit 102 
("Fair Use"), which can be ordered from the Copyright Office (see 
section 5.1).

Carol Odlum <carol@dreamer.rain.com>, a free-lance editor, has 
provided a set of guidelines used by one publisher as rules of 
thumb.  These certainly have no legal force, but it's instructive 
to note at least one publisher's interpretation of what "fair use" 
means in the real world.  The publisher uses the following 
criteria for determining when permission of the copyright holder 
must be sought in order for the work to be used:

 - Prose quotations of more than 300 words from a scholarly book.
   (If a source is quoted several times for a total of 300 words
   or more, permission must be obtained.);
 - Prose quotations of more than 150 words from a popular,
   general-market book;
 - Prose quotations of more than 50 words from a scholarly
   journal;
 - Quotations of more than 2 lines of poetry or lyrics;
 - Quotations of more than 1 sentence from a popular magazine or
   newspaper;
 - Quotations of any length from letters or other personal
   communications, interviews, questionnaires, speeches, 
   unpublished dissertations, and radio or television broadcasts.
 - Illustrations -- including drawings, graphs, diagrams, charts,
   maps, artwork, and photographs -- created by someone else;
 - Music examples of more than 4 measures;
 - Tables compiled by someone else.


2.9) Fair use - the legal basis of the doctrine.

Section 2.8, above, describes fair use in a nutshell.  This 
follow-on entry provides a more detailed description of the 
doctrine for those interested in the nuts and bolts.

There are four factors used to decide whether a particular use of 
a copyrighted work is a fair use:

   (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.

                                 17 U.S.C. 107.

The remainder of this answer discusses how each of these factors 
has been interpreted.

(1) The purpose and character of the use:  In considering the 
purpose and character of the use, courts have looked to two 
characteristics of the use: whether the use is commercial and, 
somewhat less frequently, whether the use is a "productive" one.

If the copyrighted work is being used commercially, e.g., all or 
part of a copyrighted drawing being used in a commercially 
published book on drawing techniques, that's a strike against it 
being fair use.  On the other hand, if the same drawing were used 
in a non-profit school to teach children to draw, then this factor 
would be in favor of finding a fair use.  Most situations are 
somewhere in between.  That is, a use might not be commercial, but 
it's not necessarily non-profit educational, either.

Note, though, that the statute does not command this 
"commercial/non-profit educational" balance, and not all courts 
use it, at least not by itself.  Commercial use might be forgiven 
if the use is characterized as a "productive" or "transformative" 
use, i.e., a use of the material that interprets or otherwise adds 
value to the material taken from the copyrighted work.  See 
Consumers Union v. General Signal Corp., 724 F.2d 1044, 1047 (2nd 
Cir. 1983) (noting that the use of one of Consumer Report 
magazine's reviews of a vacuum cleaner in an advertisement was a 
fair use, in part because the purpose and character of the 
advertisement was in part to educate consumers).  The Supreme 
Court has noted that the distinction between "productive" and 
"unproductive" uses is not wholly determinative, but is helpful in 
balancing the interests.  Sony Corp. v. Universal City Studios, 
464 U.S. 417, 451 n.40 (1983).

(2) The nature of the copyrighted work:  If the work being used is 
one that is factual or functional in nature, then that's a point 
in favor of use of that work being a fair use.  That's because 
copyright isn't available for facts themselves, and the courts 
recognize that it's kind of dumb to force someone with a newspaper 
clipping to completely rewrite it to avoid infringement (besides, 
a paraphrase is still an infringement, because it qualifies as 
creating a derivative work, even if it's not a direct copy).  If 
the work is a fictional or artistic one, though, taking the work 
is taking much more than any underlying facts.  A fictional or 
artistic work is more expressive than a factual one, so the 
copyright (which is designed to protect expression) is stronger.  
Even in factual works, however, where the portion used includes 
subjective descriptions whose power lies in the author's 
individualized expression, this factor might go against a finding 
of fair use, if the use exceeds that necessary to disseminate the 
facts.  See Harper and Row v. Nation Enterprises, 471 U.S. 539 
(1985) (finding no fair use for infringement of former U.S. 
President Ford's memoirs despite its factual content).

Another point that's often examined in looking at the nature of 
the copyrighted work is whether the work has been published.  
Courts will generally consider a use of an unpublished work as 
more likely to infringe than a similar use of a published work.  
Harper and Row v. Nation Enterprises, 471 U.S. 539, 564 (1985).  
This is for two reasons.  First, the first publication is often 
the most valuable to the copyright holder.  Second, it affects the 
copyright holder's ability to choose not to publish the work at 
all.  See Salinger v. Random House, 811 F.2d 90, 97 (2nd Cir. 
1987).

As with the first factor, while the "fact/fiction" balance and 
"published/unpublished" balance are two of the most common, they 
are not commanded by the statute, which only requires considering 
the "nature of the copyrighted work."  For example, in Sega v. 
Accolade, 977 F.2d 1510, 1525 (9th Cir., 1993), the Court of 
Appeals noted that the nature of most computer programs 
distributed in object code is that the functional (and therefore 
unprotected) elements cannot be discerned without disassembly.  
This supported the court's opinion that, in certain limited 
instances, disassembling of a competitor's product to find 
interface information that cannot be obtained in any other way is 
a fair use of the work, despite the fact that code disassembly 
necessarily involves making a copy of the copyrighted program.

(3) The amount and substantiality of the portion used in relation 
to the copyrighted work as a whole:  This appears simpler than it 
really is.  On the face of it, it means that if you incorporate 
95% of a copyrighted work into another work, it's a lot less 
likely to be a fair use than if you take only a small portion, 
say, 5%.  And that's true.  However, assessing this factor is a 
bit more complex than that simple statement.  Even if only a small 
portion of the work is used, if that portion is "qualitatively 
substantial," e.g., if the portion used is essentially the heart 
of the work, that use will be deemed to have been "substantial," 
and could go against a finding of fair use.  See Harper and Row v. 
Nation Enterprises, 471 U.S. 539 (1985) (finding no fair use for 
infringement of former U.S. President Ford's memoirs, where the 
portion used (which described Ford's decision to pardon former 
President Nixon) included "the most interesting and moving parts 
of the entire manuscript"), and Roy Export Co. v. Columbia 
Broadcasting System, 503 F.Supp. 1137 (S.D.N.Y. 1980) (taking of 
55 seconds out of 89-minute film deemed "qualitatively 
substantial").

To confuse matters further, some courts have (probably 
erroneously) interpreted this factor by looking at what percentage 
of the work _using_ the material is composed of material from the 
copyrighted work, rather than what percentage of the copyrighted 
work was used.  See, e.g., Association of American Medical 
Colleges v. Mikaelian, 571 F.Supp. 144 (E.D. Pa, 1983), aff'd 734 
F.2d 3 (3rd Cir., 1984), aff'd 734 F.2d 6 (3rd Cir., 1984).  While 
this interpretation is probably erroneous, it's worth bearing in 
mind that, at least in one judge's courtroom in the Eastern 
District of Pennsylvania, that's how the statute will be 
interpreted.

(4) The effect of the use upon the potential market for or value 
of the copyrighted work:  The U.S. Supreme Court has stated that 
this factor is "undoubtedly the single most important element of 
fair use."  Harper and Row v. Nation Enterprises, 471 U.S. 539 
(1985).  The late Professor Melvin Nimmer, in his treatise on 
copyright law, paraphrased it, "Fair use, when properly applied, 
is limited to copying by others which does not materially impair 
the marketability of the work which is copied."  Nimmer on 
Copyright, section 1.10[D].  If the use impacts the market for the 
work, the use is less likely to be held to be a fair use.

Note also that the weighing is of the impact on the potential 
market, not on the actual market.  For example, although Playboy 
magazine does not distribute its pictures in machine-readable 
form, it may choose to do so in the future.  One might argue that 
digitizing a picture and posting it on the net does not impact the 
current market for the magazine originals.  However, it impacts 
the potential (but currently non-existent) market for machine-
readable copies.  Because there is an impact on the potential 
market, an analysis of this factor in such a situation would not 
support a finding of fair use.

If all this sounds like hopeless confusion, you're not too far 
off.  Often, whether a use is a fair use is a very subjective 
conclusion.  In the Harper and Row case cited above, for example, 
the Supreme Court was split 6-3.  In the famous "Betamax case," 
Sony v. Universal City Studios, 464 U.S. 417 (1984) (in which the 
Supreme Court found that off-air non-archival videotaping of 
broadcast television was a fair use), the split was 5-4.  In both 
of these cases, the District Court ruled one way (no fair use in 
Harper and Row, fair use in Sony) and was reversed by the Court of 
Appeals, which was then itself reversed by the Supreme Court.  
This goes to show that even well-educated jurists are capable of 
disagreeing on the application of this doctrine.

2.10) [reserved.]




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