Navigating the 'fair use' privilege - Copyright Act's provision on fair use of copyrighted work

Folio: The Magazine for Magazine Management, May 15, 1994 by Howard Zaharoff, Brenda Cotter

It's easy to drift into dangerous waters if you don't know the basics of what is fair use, and what is foul play.

Your features editor would like to run excerpts from the soon-to-be published memoirs of Hillary Rodham Clinton in your next issue. Your art director has access to the book jacket and proposes reproducing the First Lady's profile on the cover of that issue as it appears on the jacket. Meanwhile, your marketing manager wants you to give approval for a new CD-ROM-based promotional campaign, which displays glimpses of photographs, art and text from competitive publications--all without permission, of course.

You can't reach your lawyer, and everyone needs to move quickly. You are concerned. Is there a risk in proceeding with any of these plans? The answer lies in the copyright law's "fair use" exception.

The Copyright Act gives authors the exclusive right to publish and reproduce their works. However, Section 107 of the Copyright Act permits the "fair use" of copyrighted works for purposes such as "criticism, comment, news reporting, teaching scholarship or research." When is a magazine's publication of copyrighted materials fair?

In general, the fair use doctrine requires a court to balance the public interest in disseminating information against the copyright holders' right to exploit their works. Section 107 of the Copyright Act lists four factors that must be considered in determining whether a use is fair:

* The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes only.

* The nature of the copyrighted work.

* The amount and substantiality of the portion that is used in relation to the copyrighted work as a whole.

* The effect of the use upon the potential market for or value of the copyrighted work.

Let us examine these four factors to see how they are applied by the courts.

Purpose and character of use

Certain uses receive special protection, such as nonprofit educational uses, noncommercial research, news reporting, comment and parody.

Commercial use of a copyrighted work generally weighs against a finding of fair use. However, that a magazine is sold for profit does not rule out fair use; rather, the inquiry is whether the use itself is directed to generating a profit. Thus, minor quoting from the Jack the Ripper diary before publication to analyze whether it is a hoax would probably be fair, while promoting the issue with the tagline, "Read it here first, excerpts from the Jack the Ripper diary," would hurt a fair use defense.

Courts also consider the user's conduct. For example, if the work was acquired by theft or trickery, the use is less likely to be considered fair. But note: Using a work despite the author's refusal to grant permission is generally irrelevant to a fair use analysis. Therefore, reporters should feel free to ask permission without concern that refusal will prevent a fair use finding.

The nature of the copyrighted work

Generally, works of fiction receive greater protection than works of fact. This makes sense in light of the principal purpose of the copyright laws: dissemination of information to the public. Still, quoting fiction for purposes of criticism or review is generally found to be fair use provided the other factors are satisfied.

Whether a work is unpublished is critical. Until recently, unpublished works were not subject to the fair use defense, given the strong policy favoring the author's right of first publication. Now, because of recent cases and a 1992 amendment to the Copyright Act, unpublished works can be subject to fair use. Nonetheless, magazine publishers should remain aware that unpublished works should be treated with extreme caution.

Amount of use

This factor refers to both the quality and quantity of the use. In some cases, courts have looked at the percentage of the work used. For example, in two cases, 1 percent and 4.3 percent were found acceptable.

The substantiality of the use must also be viewed qualitatively: If the user copies the critical heart of a work, for example, this is probably unfair even if the number of words copied is insignificant in relation to the whole. One case held that copying less than 1 percent of the copyrighted letters of Julius and Ethel Rosenberg could be substantial, particularly where the excerpts were featured prominently in promotional materials for the book, The Implosion Conspiracy. Thus, if a magazine published verbatim only the juiciest revelations in a celebrity biography, this would probably be unfair even if it was only a small percentage of the book.

Effect on the market

Most courts agree that the most critical factor in determining whether a use is fair is the extent to which it deprives the author of the commercial value of the work. For example, quoting substantial portions of a work (such as a poem), even for the purpose of legitimate criticism, provides people, in effect, with a copy of the work without payment to the author--generally not a fair use. On the other hand, creating a parody of the poem or other work will probably not diminish the market for it and so may be fair.