This article is a continuation of an article called "How Much of Someone Else's Work May I Use Without Asking Permission",
The End Sheet, Spring 1996, which discussed the statutory codification, judicial interpretation, and general parameters of
the "fair use doctrine".
This column discusses specific fair use judicial decisions in an attempt to show how some courts have interpreted the use,
without permission, of another's copyrighted work, and hopefully will help you evaluate whether a particular use of a copyrighted
work will be protected by the fair use doctrine.
Any attempt to understand the basis for specific judicial decisions must take into consideration the fact that the fair use
doctrine is not intended to be a rigid, fixed body of law, but is instead a flexible body of law that varies with the specific
circumstances of a particular case. It is for this reason that fair use judicial decisions are difficult to predict and sometimes
very difficult to reconcile with previous decisions.
How Much Can One Use of Literary Works?
Many authors and publishers have the perception that the law provides specific guidelines relating to the number of words
one can use of a copied work. Although rumors persist as to word-count guidelines, it is safe to conclude that the law does
not provide a specific word-count that will be designated as fair use of another's work. Some examples of the scope of such
word-count variances are the following: (i) 300 words quoted in a magazine article from approximately 30,000 words in President
Gerald Ford's manuscript of his memoirs was not fair use, (ii) 200 words quoted from the unpublished letters of J.D. Salinger
in an unauthorized biography was deemed not to be fair use, (iii) the photocopying of entire scientific and medical journal
articles was found in one instance not to be fair use (American Geophysical Union v. Texaco, Inc., 1994), and in another instance
to be fair use (Williams & Wilkins Co. v. United States, 1975), and (iv) placing unpublished Church of Scientology materials
in their entirety on an Internet bulletin board was found to be fair use.
One may ask, "Why are their no absolute rules?" Probably the simplest, and yet most unsatisfactory answer is that the specific
circumstances of each case differ. The court when evaluating fair use analyzes four separate factors to determine whether
the fair use defense applies in the specific case. These factors are the following:
(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; and
(4) the effect of the use upon the potential market for or value of the copyrighted work."
Because the court in analyzing fair use considers all of the above four factors -- no single factor is and of itself sufficient
to prove fair use -- a brief review of two cases should be helpful in understanding how the court reached its decision on
the fair use issue.
President Ford's Memoirs
President Ford contracted with Harper & Row to publish his memoirs. Harper & Row then contracted with Time magazine the exclusive
right to publish, one week before the book would be shipped, a 7500 word excerpt from the book. The Nation magazine obtained
a copy of the Ford manuscript several weeks before Time's publication of the article and published its own 2,250 word article
that included quotes, phrases and facts from the manuscript. Following the publication of the Nation article, Time canceled
publication of its article and did not pay remaining monies that were due Harper & Row. Harper & Row then proceeded to sued
the Nation for copyright infringement.
This case eventually wound up in the Supreme Court where the Court found in favor of Harper & Row and against the Nation's
argument of fair use. The Court's analysis of the four factors was as follows:
1. Purpose of Use - Although the Court agreed that news reporting was a favored purpose "the fact that a publication was commercial
as opposed to nonprofit is a separate factor that tends to weight against a finding of fair use." The Court in determining
this factor weighed against a finding of fair use emphasized the "Nation's stated objective of scooping the forthcoming book
and Time article.
2. Nature of the Copyrighted Work - Despite the fact that the Court recognized a greater need to disseminate factual works
than fictional works, the Court concluded, based upon the unpublished status of Ford's memoirs and the fact that it was up
to the author to control publication, that this factor weighed against a finding of fair use.
3. Amount and Substantiality of the Portion Used - The amount of the Nation's use of Ford's memoirs was not very large; the
District Court determined that only 300 words in the Nation's article were copyright protected. However, the District Court
concluded that these 300 words were "qualitatively substantial, constituting the "heart of the book." The Supreme Court therefore
determined that this factor weighed against a finding of fair use.
4. Market Effect - The Court stated that the market effect "is undoubtedly the most important element of fair use." In analyzing
this factor the Court concluded that "[r]arely will a case of copyright infringement present such clear-cut evidence of damage",
and that any inquiry into this factor must take into account any damage to the original work as well as to any "harm to the
market for derivative works." Needless to say, the Court concluded that this factor weighed against a finding of fair use.
In summary, the Supreme Court concluded that all four factors weighed against finding a fair use defense for the Nation's
publication of the article based on President Ford's memoirs.
Church of Scientology
The Religious Technology Center ("RTC") is a formal entity of the Church of Scientology founded by Ron L. Hubbard. RTC claims
to hold an exclusive license to certain unpublished works of Hubbard which have restricted access to only certain members
of the Church. F.A.C.T. Net is a nonprofit educational and charitable company run by former Church members. F.A.C.T. Net maintains
a library and archive information on the Church dealing with the Church's controversial status as a religious tax exempt organization;
much of this information is available on F.A.C.T. Net's bulletin board on the Internet. RTC sued F.A.C.T. Net for copyright
infringement for placing unauthorized copies of unpublished Church materials on the Internet.
This case was brought in the federal District Court of Colorado where the court refused to grant a preliminary injunction
that would have removed the F.A.C.T. Net materials from the Internet. In refusing to grant the injunction the court concluded
that F.A.C.T. Net's use of the Church materials was fair use. The court's analysis of the four factors was as follows:
1. Purpose of Use - The court noted that the purpose and character of F.A.C.T. Net's use of the Church materials was not commercial
in nature. Instead F.A.C.T. Net's use was nonprofit in that its publication of the Church materials was to advance an understanding
of issues involving the Church that were subject to continuing public controversy. The RTC failed to show evidence that any
follower of the Church would consider the Internet postings as a market substitute for the Church materials. The court concluded
that this factor weighed in favor of fair use since the purposes of criticism, comment and research all fall within the fair
use doctrine.
2. Nature of the Copyrighted Work - The court recognized that the Church materials were unpublished, but the court went on
to differentiate this case from President Ford's unpublished work and the fact that it is up to the author to control publication,
stating that the same concerns of the Court in Harper & Row did not apply in this situation.
3. Amount and Substantiality of the Portion Used - The court noted that it could not compare the material that was copied
by F.A.C.T. Net and placed on the Internet with the Church's original materials because RTC failed to provide the court with
the materials in their entirety. The court further stated that even if a work was copied in its entirety that such copying
could still constitute fair use.
4. Market Effect - The court decided that even though the Church materials were unpublished that F.A.C.T. Net's use of the
materials would not effect any future publication of the materials. The RTC also failed to demonstrate any potential financial
loss to the Church. The court concluded that this factor weighed in favor of fair use.
In summary, the District Court of Colorado concluded that F.A.C.T. Net had made fair use of the Church materials; the use
was non-commercial and the evidence presented by RTC suggested no financial harm, other than that possibly resulting from
criticism, to the copyright owner.
Guidelines
One must remember there are no absolute rules when the issue involves how much one is permitted to take of another's copyrighted
work and still be protected by the fair use doctrine.
1. Do not depend on word-count guidelines.
2. Commercial use of another's work is less likely to be considered fair use than uses that are educational or criticism.
3. Factual works receive less protection than fictional works.
4. If you are quoting another's work without permission, and are relying upon the fair use doctrine to protect your copying,
make certain that you quote accurately, provide proper credit to the source of the copied work, and if possible add value
to the quoted material by comparing, criticizing or commenting upon such material.
There is no certainty, when copying another copyrighted work without permission, that a court will interpret the specific
circumstances as fair use. Ultimately, whether a court will determine a specific use to be fair use will be dependent upon
the circumstances and the court's analysis of the four fair use factors enumerated in Section 107 of the Copyright Act.
This article is not legal advice. You should consult an attorney if you have legal questions that relate to specific publishing
issues and projects.
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