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September 2001
Vol. 31, No. 9, pp 46–49.
Legal Insights

Table of Contents

Eric S. Slater

Is it fair use? It depends.

“Fair use” is the privilege to use copyrighted material in a reasonable manner without having to secure the copyright owner’s consent (1). In the March 2001 issue of Chemical Innovation, I looked at the principle of fair use from a very general point of view (2) and advised against relying on fair use as a crutch. It is always preferable to contact copyright owners for permission when using their material.

There are times, however, when it is permissible to use others’ works, and it is possible to make a solid fair use argument. Fair use is recognized and applicable in four areas. Before I list them, a caveat: Because application of fair use is fact-intensive and varies case by case, the examples given in this article should be taken as general cases. Decisions about fair use can turn on the interpretation of a particular judge, and a seemingly similar set of facts can differ just enough to result in a ruling against fair use.

The concept of fair use is found in the United States Copyright Act under Section 107 (3). Fair use is not defined in a clear-cut way; the law provides four factors that must be considered together in determining whether a case for fair use has been made:

  • the purpose and character of the use, including whether such use is of a commercial nature or for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

Areas where fair use has been recognized by means of litigation, legislation, and actual practice as permissive include parody, educational uses, library uses, and computer programs. It can be argued that the courts are fairly liberal when it comes to parody, and some generally recognized applications fall under classroom use. The spectrum begins to narrow when venturing into the categories of library uses (libraries enjoy certain narrow exemptions) and computer programs (including Internet uses). Given the previous caveat, it would be inadvisable to view every use under parody, for example, as permissible. As lawyers are fond of saying, “It depends.”

Parody
Parody has a long tradition of being protected as a fair use if the use seems reasonable under the four statutory factors, even though it’s not specifically mentioned in the statute itself (4). Examples of protected parody run the gamut from film to television, music to written works, even in advertising and MAD magazine. Parody is likely the most interesting application of fair use, given the nature of how original material is creatively transformed. I focus here on several court cases and how parody is interpreted. It most certainly can differ from court to court and case to case.

In parody, some degree of copyright infringement is taking place. In fact, it is not unusual for a satirist or parodist to use the creative work of another, either to poke fun at the borrowed work itself or at some altogether extrinsic social and political phenomenon (5, p 586). In general, the satirist identifies the borrowed work and writes for an audience that is familiar with that work. Furthermore, for the parody to be effective, it has to reproduce parts of earlier copyrighted works (5, p 587).

The courts have been divided about comic book characters, depending on how the parody is portrayed and how much of the original work is used. For example, MAD magazine has done many parodies of Disney characters, including Mickey Mouse, and has never been sued by the Disney Corporation. Perhaps this is because MAD is known for this kind of humor, is not taken seriously, and takes only what is necessary to parody. Also, Disney characters are universally recognizable and do not have to be copied exactly to be recognized. MAD has never lifted exact copies from the original Disney works in its portrayal of the characters—they use just enough to conjure up the images necessary to make the parody successful.

Figure 1. Parody is an example of fair use.
Figure 1. Parody is an example of fair use.
Even Chemical Innovation has taken part in parody—a cartoon from the April 2001 issue (Figure 1) depicted Mickey Mouse ears and made reference to the “Mickey Mouse Club” (6). This is obviously not the context in which one would normally expect to see Mickey Mouse, but it’s enough to conjure up the recognizable image—a caveman is holding a club with only Mickey Mouse ears on top of it. In contrast, Disney successfully sued the Air Pirates in a 1970s case in which the defendants published a comic book that featured Disney characters copied in their entirety, exactly from the originals—thereby taking more than what was necessary to pull off the parody (7). Further, the parody element was lost in that the Disney characters were portrayed in unsavory ways, that is, in sexual situations and using drugs.

In the only Supreme Court decision on the question of parody, the publisher of Roy Orbison’s classic song “Pretty Woman” sued the rap group 2 Live Crew (8). The 2 Live Crew version of that song adapted and altered the melody and tracked the lyrics of Orbison’s song (“Pretty Woman” was changed to “two-timin’ woman” and “bald-headed woman”, among other incarnations). The parodied version also reproduced (or maybe sampled) a guitar riff that recurs throughout the Orbison original. The lower court rejected 2 Live Crew’s fair use argument, but the Supreme Court emphasized the “transformative” nature of the parody and implied the work was sufficiently transformative to meet the four-part fair use test. Even though the Court did not explicitly find that this was a fair use, the language used by the Court makes clear its tolerance for parodies, hence the wider interpretation on the fair use spectrum discussed earlier.

Finally, let’s look at parody applied to written works. Ostensibly, if the four factors are met, the chances are good that a court will rule favorably to a fair use defense. Again, though, it depends on what is being parodied and how. Recently, a federal court in Georgia ruled that The Wind Done Gone, written to parody Gone with the Wind, was not a parody, but effectively a sequel, and blocked publication (9).

Alice Randall wrote the new work from an African–American point of view as a retelling of the original Margaret Mitchell classic. The court ruled that Randall’s work went too far to be merely a parody because the new work copied the heart of Gone With the Wind’s characters and scenes. It didn’t pass the fair use test because it is still the same fictional world, described in the same way and inhabited by the same people, who are doing the same things. The publisher of Randall’s work, Houghton Mifflin, argued that Randall borrowed certain scenes and characters from the original and sufficiently “transformed” them to create a new story, replete with social commentary about the African–American experience in the South (10). This decision was overturned in late May by the United States Court of Appeals for the 11th Circuit—apparently this court was convinced that Randall borrowed only what was necessary from the original to effect the parody (11).

In the Wind Done Gone example, the defendants argued under the same theory that worked for 2 Live Crew, and, on appeal in the Wind case, the new work was “transformative” enough to be protected under fair use. Here, different courts interpreted fair use and parody differently. Remember the mantra of “It depends”.

Educational uses
Historically, the advent of faster, more effective means of copying has obliged the copyright system to respond to each new technology (12). This was the case when using photocopy machines became the norm; of course, the law has had to be updated to deal with personal computer use. The major issues surrounding photocopying involve schools and libraries.

Photocopying for educational purposes is a balancing act. The schools’ arguments that they are nonprofit organizations and their mission is to provide a means of disseminating information has to be reconciled with the copyright owners’ right to be compensated when large volumes of photocopying take place. Congress considered these problems when it revised the Copyright Act in the 1970s (13). The legislative history set forth some guidelines to state minimum standards for fair use under Section 107:

Single copying for teachers. A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparing to teach a class:

  • a chapter from a book;
  • an article from a periodical or newspaper;
  • a short story, short essay, or short poem, whether or not from a collective work; or
  • a chart, graph, diagram, drawing, cartoon, or picture from a book, periodical, or newspaper.

Multiple copies for classroom use. Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion, provided that the copying meets the guidelines for brevity, spontaneity, and cumulative effect (12), and each copy includes a notice of copyright.

Bear in mind that again, these are minimum guidelines set forth in the legislative history and are not included in the statute. I stated in my previous article that fair use might in this context be defined as reproducing 200 words or 10% of the work. These figures are more appropriately applied to use in research than classroom use, however.

Teachers have run into trouble when they create course packets. In my previous article, I discussed two landmark court cases in this realm—Kinko’s (13) and Michigan Document Services (14). In both cases, courts similarly ruled that not obtaining permission from copyright owners to reproduce their works is an infringement of copyright. To avoid problems, always write directly to the copyright owners for permission first, or report any copying to the Copyright Clearance Center (CCC) (15). At ACS, the Copyright Office receives numerous requests of this type, and through an agreement with the CCC, educational photocopying done from ACS publications is recorded and reported to the CCC. The bottom line is that even though there are some recognized fair use provisions, they should not be relied upon as the final word. “Obtain permission” is always the best advice I can give; reporting photocopying to the CCC is a viable alternative.

Library uses
Section 108 of the 1976 act sets forth a special regime favoring certain acts of copying by (primarily) nonprofit libraries (5, p 645; 16). The legislative history (congressional committee discussions prior to enacting the law) discusses the role played by libraries in the educational process and thus created special photocopying provisions. The factors in Section 108 are required to be considered separately (though not necessarily exclusively) from the Section 107 fair use factors and do not extend to the library patron (5, p 646). In other words, only the library itself falls within the parameters of Section 108—a college professor, for example, photocopying articles for his chemistry course cannot do so under the Section 108 exemptions. The library patron’s use of a library’s facilities can only fall within the ambit of Section 107 when attempting to make a fair use argument.

  • The major clauses of section 108 that a reader of Chemical Innovation will likely encounter are
  • No more than one copy of a work can be made [108(a)].
  • Copies can be made to replace lost, damaged, stolen, or deteriorating works [108(c)].
  • One copy can be made for use by a library patron [108(d)].
  • Copying is limited to the making of an “isolated and unrelated reproduction of a single copy” [108(g)]. This section prohibits the systematic reproduction or distribution of copyrighted works. It is under this provision that the college professor referred to above is prohibited from making multiple copies of an article for his class, either on his own or by having a library employee make the copies. As a library patron, he is permitted only to make one personal copy for himself.

Other important factors to bear in mind: The library must derive no commercial advantage, direct or indirect, in making the copy; the collection must be open to the public; and the reproduction must have a copyright notice, for instance, © 2001 American Chemical Society.

Fair use cannot play a role in other situations. For example, a library cannot fulfill the requests of 100 students from a college course for photocopies of an article [108(a)] or photocopy for one patron entire chapters of a book or numerous articles from a periodical one at a time over the course of days or weeks [108(g)].

People who work in libraries may feel that they should be able to fulfill these types of requests because they are supporting education by disseminating information. However, the limitations under Section 108 exist separately from Section 107, so that fair use cannot be used as an argument for engaging in activity that is not fair to copyright owners.

Computers and the Internet
The concept of fair use has been applied to computers, and more recently, specifically to issues surrounding Internet content. Under “public policy” grounds, fair use is available as a tool for deciding difficult cases involving new situations and raising major policy concerns that have not otherwise been specifically addressed by Congress (5, p 200). Certainly, computer use, the Internet, and any new technology would fall into this category. Again, fair use may or may not apply, depending on the facts, how a case is presented, and the interpretation from court to court.

A case involving computer programs took place in the early 1990s, and the decision paved the way for reverse engineering and compatibility of computer programs (17). In this case, Accolade, a competitor to Sega, wanted to create the same types of game cartridges used for the Sega Genesis game system. Accolade “reverse engineered” existing Sega cartridges, copied the programs contained on the cartridges, and “disassembled” the object code to see what parts of the code were present on all cartridges. It was then able to determine the short code (~20–25 bytes) used on all cartridges to make it run on the Sega Genesis system. Accolade did not copy any of the actual Sega games. Sega sued for copyright infringement focusing on Accolade’s “intermediate” copying, arguing that the intermediate copying that Accolade had admittedly done was infringing copies of Sega’s copyrighted game cartridges. The appellate court ruled in favor of Accolade, finding that disassembly of copyrighted object code is a fair use of the copyrighted work, if such disassembly provides the only means of access to those elements of the code that are not protected by copyright and the copier has legitimate reason for seeking such access.

From a public policy standpoint in the Sega case, the court held that Sega should not be allowed to monopolize the market for this product. To paraphrase, the court indicated that monopolization runs counter to the statutory purpose of the Copyright Act, thus allowing the fair use doctrine to be invoked in this case. The scope of this holding is very narrow.

Fair use was put forth as an argument in the recent Napster case, which involved copying music files from the Internet (18). In Napster, the defendant was sued by several record companies for copyright infringement of recorded music. By way of peer-to-peer sharing of files via MP3 technology, users were able to obtain music essentially for free. The Ninth Circuit issued an injunction against the Napster service and sent the case back to the District Court, where the judge ruled that Napster must filter out lists of songs provided to them by the various copyright holders or be shut down.

During the trial, Napster made a fair use argument based on an earlier landmark case involving new technology, the Sony Betamax case (19). There, a fair use argument made was persuasive and upheld by the Supreme Court. The Sony Betamax case dealt with the use of VCRs to record television programs for later viewing. Universal Studios sued Sony, the VCR manufacturer, based on the argument that home videotaping of programs was an infringement of copyright. In its decision, the Supreme Court overturned the lower court, holding that the home recording of television programs, which were otherwise delivered to home for free over the public airwaves, for the purpose of “time-shifting”—viewing at another time, after which the copy is erased—did not constitute copyright infringement because it qualified as a fair use.

Napster tried to use the “time-shifting” argument, calling it “space-shifting”. In essence, Napster users were engaging in the same type of activity as VCR users. The Ninth Circuit was unwilling to extend the Sony decision pertaining to VCR use to Napster and peer-to-peer file sharing. Napster differed from Sony in that Napster files are stored on a central server, and thus available to the public. Conversely, VCR recording is confined to one user (the original user) at a time. Further, Napster argued that users were merely “sampling” music when downloading it. The court was unwilling to extend fair use to sampling because the record companies strictly regulate the promotional downloads that they provide. In this context, “sampling” is defined as listening to the music in order to decide whether to purchase the recording. In any event, Napster still exists. It is in the process of blocking access to certain music, while other music remains available as part of its service. Certainly, Napster is not as large as it was—apparently, a better business model for MP3 downloading is for Napster-like services to establish fee-structure agreements with the copyright owners. Of course, there are still ways to circumvent the overall system, and a number of Napster “wannabes” are out there doing the same thing. New technology, however, makes it more difficult to track down those who are infringing on copyrights.

Are we any closer to defining fair use?
No. And we probably never will be as long as the current statutory structure and court interpretation remain in place. Everything discussed in this article describes a system in which legislation and court decisions are geared to provide guidance. Sometimes in court, the facts are similar enough from case to case to warrant similar holdings, sometimes they are not. The arguments made in Napster, for example, represented some creative lawyering by Napster’s legal team, but they were unable to persuade the court.

It would seem that fair use as applied to parody and classroom uses currently enjoys a broader interpretation than does fair use as applied to libraries and computer uses. Keep in mind, though, that court decisions in cases such as Kinko’s have served to narrow what had been a much broader area. Library uses are more limited, and integration of the law and its application to computers and the Internet are still developing. The Sega decision is narrow in scope, and thus far, it seems that courts are treading carefully when it comes to the Internet.

I’ll say it again—don’t rely on fair use as a crutch. When in doubt, ask the copyright holder for permission. For tough cases, it’s always best to retain an attorney who specializes in copyright law.

References

  1. Rinzler, C. E. Publisher’s Weekly 1983, 223 (14), 26–28.
  2. Slater, E. S. Chem. Innov. 2001, 31 (3), 46–47.
  3. Copyrights. U.S. Code, Section 107, Title 17, 1994.
  4. Samuels, E. The Illustrated Story of Copyright; St. Martin’s Press: New York, 2000; p 192.
  5. Gorman, R. A.; Ginsburg, J. C. Copyright for the Nineties, 4th ed.; Michie Co.: Charlottesville, VA, 1993.
  6. Cooney, D. Chem. Innov. 2001, 31 (4), 46.
  7. Walt Disney Productions v. The Air Pirates, 581 F.2d 751 (9th Cir. 1978).
  8. Acuff-Rose v. Campbell, 113 S.Ct. 1642 (1993).
  9. SunTrust Bank v. Houghton Mifflin Co., No. 1:01-CV-701-CAP (N.D.Ga. 2001).
  10. Vejnoska, J. Begone, judge tells “Wind” publisher. The Atlanta Journal-Constitution, April 21, 2001. http://www.accessatlanta.com/ajc/ (available in archives for a fee).
  11. Kirkpatrick, D. D. “Wind” Book Wins Ruling in U.S. Court. The New York Times, May 26, 2001. www.nytimes.com/2001/05/26/business/26BOOK.html.
  12. Association of American Publishers. Guidelines for Classroom Copying. www.publishers.org/.
  13. Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp.1522 (S.D.N.Y. 1991).
  14. Princeton University Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir. 1996) (en banc).
  15. Copyright Clearance Center Inc. 222 Rosewood Dr., Danvers, MA 01923; 978-750-8400; fax 978-750-4470; www.copyright.com.
  16. Copyrights. U.S. Code, Section 108, Title 17, 2000.
  17. Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992).
  18. A&M Records v. Napster, Nos. 00-16401, 00-16403 (9th Cir. 2001).
  19. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).


Eric S. Slater is the copyright administrator for the ACS Publications Division (1155 16th St., NW, Washington, DC 20036; 202-872-4367; copyright@acs.org).

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