Getting Comfortable with Fair Use
Applying the Four Factors
• Few court rulings about fair use directly address education and libraries.
• A variety of other court rulings concerning fair use offer important guidance for teaching and research activities.
• Fair use ultimately depends on a balancing of the four factors in the statute as applied to specific facts.
• Appendix B of this book includes a checklist for assisting with decisions about applying fair use.
AMERICAN COURTS HAVE analyzed and applied fair use in hundreds of cases, but rarely have they interpreted fair use for education or library activities. A growing number of colleges, universities, libraries, and other organizations may face accusations of copyright infringement, or may be analyzing and applying fair use to support innovative projects. Seldom do these situations progress—or degenerate—into lawsuits. The parties settle; the questionable activities stop; the project rarely stirs prolonged legal anxieties.
Whatever the reason, copyright dilemmas are usually resolved long before a judge has a chance to tell us what the law really is. Consequently, educators and librarians are left to infer what they can from the few cases that have some relevance to the academic community. Increasingly, educators and administrators must preemptively consider the fair use implications of their projects as innovative activities continue to raise questions regarding the boundaries of fair use law.
A modest number of cases offer some insight into judicial interpretations of fair use law in situations similar to those faced by educators and researchers. A leading example involves Kinko’s Graphics, the well-known national chain of photocopy shops, which was sued more than two decades ago for making photocopied course packs without permission.1 The court rejected Kinko’s fair use defense, in large part because Kinko’s was a for-profit entity and was photocopying for a commercial purpose. Imagine a similar case, not against Kinko’s, but against a university. Copying for nonprofit, educational purposes may sway the first factor in the opposite direction. A court may well find that some copying in the hands of the educational institution could be fair use. Until a court rules on exactly your specific need, we can only use our best judgment to infer the law’s possible meaning under any given circumstances.
Courts have also addressed the application of fair use to diverse media in education. In Higgins v. Detroit Educational Broadcasting Foundation,2 the court allowed as fair use the incorporation of short pieces of a musical work into the background of a video production broadcast on a local PBS affiliate and sold in limited copies to educational institutions. The court sympathized with the educational and public-service purpose of the production. The defendant used a brief amount—only about thirty-five seconds of a popular song—and only in the background of the opening scenes. A song is generally a creative work, so that its nature tipped in favor of stronger protection and against fair use. The copyright owner did not actively license the song for such uses, so the use had no adverse market effect. Three of the four factors weighed in favor of fair use, and the court allowed this use of music.
Other decisions reveal the limits of fair use. Consider these conclusions from various courts:
• The full text of newspaper articles posted to an unrestricted website—even to further a social cause—is not fair use.3
• Playing music in the background while phone callers are placed on hold is not fair use.4
• Glimpses of photographs in the background of a movie or television production have left courts seemingly divided. One court ruled that if the images are fairly prominent in the set for a cable TV show, they may not be fair use.5 Another court ruled that fuzzy images in a motion picture scene are fair use.6
• File sharing of music—the uploading and downloading of recordings—through the original Napster and similar services is not within fair use.7
• Downloading and caching from the Internet the full text of content from multitudes of websites, for the purpose of facilitating web searching and reliable access to websites, is fair use.8
Still, none of these cases exactly addresses the common needs of education, research, and librarianship. Courts have not directly ruled on questions of classroom handouts, library reserves, online courses, and digital libraries. Nevertheless, we often need to decide if these activities are within fair use—even without the benefit of explicit direction from the law.
This chapter offers guidance for thinking about fair use in a variety of situations, ranging from familiar needs to legally unexplored territory. This chapter demonstrates the practical application of fair use to meet important objectives. It offers simple scenarios that are at the core of common practice among educators and librarians. The scenarios begin with the simplest and build to larger-scale projects and newer technologies. The principal point of each scenario is to model the process of thinking through the four factors and moving toward a conclusion about fair use.
Scenario
Professor Tran is writing a lengthy historical study and wants to include various quotations and clips of other copyrighted materials. Is she protected by fair use?
Whether or not Professor Tran is staying within the boundaries of the law will depend on a multitude of variables, but start with the most familiar situation and move to the more complex. Begin with a simple quotation from one work included in her new historical study. She may be writing about aviation and quote sentences from a biography of Charles Lindbergh, or for a study of historical epidemics she may comment critically on studies of plagues and social structure. Professor Tran needs to consider the four factors, and she can find helpful and relevant cases, such as Penelope v. Brown.9
In that case, a professor, Penelope, wrote a book about English grammar and language usage. Brown, a writer of popular fiction, later wrote a manual for budding authors. Amidst five pages of Brown’s 218-page book, she apparently copied sentence examples from Penelope’s work. When Penelope sued, the court ruled that Brown’s use was fair. Here is how the court addressed the four factors:
Purpose: The court found that the second book greatly expanded on pieces borrowed from the first, making the use productive and not merely superseding the original. The court also found little commercial character in the use of the small excerpts, and it found no improper conduct by Brown. This factor favors fair use.
Nature: The court looked to the nonfiction nature of the work used and its limited availability to the public. This factor favors fair use.
Amount: The excerpts were a small amount of the first work. This factor favors fair use.
Effect: The court found little adverse effect on the market for the original, noting that the two books might appear side-by-side in a store, but a buyer is not likely to see one as a replacement for the other. This factor also favors fair use.
The Penelope case might give Professor Tran considerable peace of mind if she is using short quotations from a published, nonfiction work. The one case, however, does not tell how far Professor Tran can go. What about long quotations? What if she were not copying published text, but instead pictures, poetry, unpublished manuscripts, or other types of works?10
The case of Maxtone-Graham v. Burtchaell suggests how Professor Tran might test the limits of the law with lengthy quotations.11 A book about pregnancy and abortion included interviews with women about their own experiences. Sometime later, another author prepared his own book on the same subject and sought permission to use lengthy excerpts from the first work. That author, the plaintiff in this case, refused permission, and the defendant proceeded to publish his work with the unpermitted excerpts. The borrowed material encompassed slightly more than 4 percent of the work, including many insightful passages from the interviews. The court relied on the factors to conclude that the lengthy quoting was fair use.
Purpose: The defendant’s book was published by a commercial press with the possibility of monetary success, but the main purpose of the book was to educate the public about abortion and about the author’s views. This factor favors fair use.
Nature: The interviews were largely factual, which also favors fair use.
Amount: Quoting 4.3 percent of the plaintiff’s work was not excessive, and the verbatim passages were not necessarily central to the plaintiff’s book. Again, this factor supports fair use.
Effect: The court found no significant threat to the plaintiff’s market. Indeed, the court noted that the plaintiff’s work was out of print and not likely to appeal to the same readers.
This case affirms that quotations in a subsequent work are sometimes permissible, even when they are extensive. This case also suggests much about using materials in an educational setting, where an instructor may be using pieces and clips of various works to prepare teaching materials or an online course. Even large pieces could be within fair use, especially for the favored purpose of education. Fair use is also stronger if the instructor is using the materials in the context of original teaching materials and with accompanying comments and criticism.
What if the user is doing more than merely copying pieces and embedding them in a new original publication? What if Professor Tran is looking to copy materials in full without original commentary? The next cases shed some light on straight copying.
Scenario
Professor Tran teaches at a community college and wants to make photocopies of articles and book excerpts as handouts for her students. Is she within fair use?
American courts have yet to rule on the question of fair use for paper or electronic copies made for educational purposes.12 But two cases from the 1990s examined fair use for commercial photocopying, and they offer some analogous insights. The first case is the landmark ruling in Basic Books, Inc. v. Kinko’s Graphics Corporation.13
Kinko’s was found to be infringing copyrights when it photocopied book chapters for sale to students as course packs for their university classes.
Purpose: Although the materials were ultimately used in education, they were copied for the commercial benefit of Kinko’s. Therefore, this factor weighed against fair use.
Nature: Most of the works were factual—they were works of history, sociology, and other fields of study—which tipped this factor in favor of fair use.
Amount: The court analyzed the percentage used of each work, finding that copying 5 to 25 percent of the original full book was excessive, tipping this factor against fair use.
Effect: The court found a direct adverse effect on the market for the books, because the course packs competed with the potential sales of the original books as assigned reading for the students. The photocopying of select chapters realistically undercuts sales of the books to those students, tipping this factor against fair use.
Three of the four factors leaned against fair use. Although fair use is not strictly a count of factors for and against, the reality of having solid arguments tipping three factors in one direction is usually persuasive. The court held that Kinko’s therefore had committed infringement.
The second case is Princeton University Press v. Michigan Document Services, Inc.14 A private copy shop created and sold course packs under circumstances similar to Kinko’s. The copy shop was also found to have acted outside the limits of fair use. This case sharply divided the panel of judges who ruled on it. Nevertheless, the court’s reasoning was similar to the Kinko’s decision, with at least one important difference: the court gave most of its attention to the question of market harm. The court was particularly persuaded by the availability of options for licensing the materials—or securing permission from the copyright owners—before making the copies. The court also noted that securing permissions had become standard procedure among commercial shops making photocopied course packs.
What do these cases tell us about Professor Tran’s needs? She has a definite advantage when she makes limited copies herself on the college’s photocopiers, thereby avoiding the disfavored commercial purpose. She can also help her cause by keeping the materials as brief as possible—that is, limiting her copying to just the amount needed for her educational purpose—and perhaps by checking the market for the reasonable availability of permission from the copyright owner.
What if Professor Tran wants to post the materials to a secured website or course management system? Fundamentally, fair use applies to electronic uses just as it does to paper copies. However, digital copies may be easily copied, uploaded, and shared without the practical limits that constrain hard copies. To help her case for fair use, Professor Tran should restrict access to the materials with password protections or other controls, and she should take the occasion to help her students understand the copyright implications of any misuse. Delivery through a secured system, rather than through e-mail or handouts, gives greater opportunity to inform students and prevent possible misuse of the copyrighted works. Chapter 11 examines similar issues for library electronic reserve systems. Many of the considerations Professor Tran faces for her own work are similar to the issues of fair use that arise in the development and implementation of library reserve systems.
Single Copies for Research
Scenario
Professor Tran needs to make single copies of articles, chapters, and other materials to support her research or to help her prepare for teaching. Are individual copies within fair use?
Generally single, isolated copies of brief items should easily fall within fair use. In the context of nonprofit education and research, they probably are within the law. The case of American Geophysical Union v. Texaco Inc.,15 however, is a reminder that the limits of fair use can arise in seemingly the most innocuous circumstances. The case involved photocopying of individual journal articles by a Texaco scientist for his own research needs. The company circulated lists of new journals and articles, and employees were allowed to make copies for their individual reference. The court held that the copying was not within the limits of fair use.
Purpose: While research is generally a favored purpose, the ultimate purpose was to strengthen Texaco’s corporate profits. Moreover, exact photocopies are not transformative; they do not build on the existing work in a productive manner.
Nature: The articles were factual, which weighs in favor of fair use.
Amount: An article is an independent work, so copying the article is copying the entire copyrighted work. This factor weighs against fair use.
Effect: The court found no evidence that Texaco reasonably would have purchased more subscriptions to the relevant journals, but the court did conclude that unpermitted photocopying directly competes with the ability of publishers to collect licensing fees. According to the court, the Copyright Clearance Center (CCC) provides a practical method for paying fees and securing permissions, so the copying undercut the ability to pursue the market for licensing through the CCC.
Despite an impassioned dissent from one judge who argued for the realistic needs of researchers, the court found three of the four factors to weigh against fair use in the corporate context. This case was a clear signal to many for-profit entities that they ought to evaluate the option of securing licenses that cover their copying and other uses of many copyrighted works. That approach may be especially true if a blanket license from the CCC is affordable and actually encompasses many of the works that the user actually needs.16
For nonprofit users, the case is a dose of caution about simple photocopying, although a court is not likely to construe fair use so narrowly in that context. The Texaco decision emphasizes that the ruling applies only to systematic commercial copying, and the court explicitly noted that it would not likely extend the ruling to individual researchers acting solely at their own behest for their own research initiatives. Our fictitious Professor Tran is likely to conclude that much of her copying of single, brief items is fair use. She would likely reach the same conclusion about single downloads and printouts from the Internet or from licensed databases.
Cutting and Pasting for an Educational Wiki
Scenario
Professor Tran wants to create an innovative teaching tool, cutting and pasting a variety of works into a single cohesive set of materials for the students enrolled in her classes. She plans to gather and edit the materials as an evolving wiki, available to her students, and to be further revised and edited with newer materials all semester. Students access the wiki through a password-protected site.
If Professor Tran’s wiki is little more than copies of reading and other materials, then her analysis of fair use may be much like the scenarios involving course packs or selected quoting. One could argue that she is just producing a digital version of the familiar print materials and making them available to only the students in her class. Even so, she probably has more flexibility about fair use than Kinko’s had for its commercial copying.
Similarly, if she is clipping pieces and excerpts of materials, arranging them to suit her innovative needs, and enveloping them with original commentary and instructional content, then she may be making a high-tech version of a book or other teaching materials. In many respects, her fair use questions and challenges are not unlike the approach she might have applied to more conventional or familiar situations. She may be safely within fair use when she uses brief portions that are incorporated in a transformative manner; she may need to reflect more carefully when using large portions of works as straight reproductions.
In any event, the question of fair use will turn on the circumstances surrounding each individual item. If she is using clips of nonfiction text, fair use should be reasonably flexible. If she is using music, art, poetry, and other more creative works, she should be more circumspect. If she is wrapping the use in commentary and criticism, her uses may be transformative, and she is on safer ground than she would be with straight copying. A few instructive court cases remind us that one can still face limits on fair use:
In Los Angeles Times v. Free Republic, the court ruled that posting the full text of newspaper articles to a website, even for the purpose of allowing readers to comment on those articles through the website, is not fair use.17 Professor Tran, by contrast, is proposing to use materials for nonprofit education and only with restricted access. She can strengthen the possibilities of fair use by using only excerpts of articles. She can avoid issues of fair use entirely by linking to databases that might be available from her library, or to sources openly available on the Internet.
In Tiffany Design, Inc. v. Reno-Tahoe Specialty, Inc., the court ruled that digital cutting and pasting of photographic elements into a montage of the Las Vegas skyline was not fair use.18 The purpose was to create a commercial product for sale to the public. Professor Tran, by contrast, is producing teaching materials to serve her instructional needs. In the recent case of Bill Graham Archives v. Dorling Kindersley Ltd.,19 a court ruled that the reproduction of small-size images of artistic posters was fair use, particularly if they are used in the context of a historical study. The reproductions were fair use even in a book produced for sale by a commercial publisher. Should Professor Tran later decide to publish her teaching materials, she will likely need to discuss and even negotiate with her publisher an appropriate standard of fair use.
In NXIVM Corporation v. The Ross Institute, the court ruled that fair use could allow someone to produce a critical analysis of copyrighted materials used in business seminars.20 Fair use allowed the defendant to make a critical analysis of the materials and to post that critique on the Internet—even if it included approximately seventeen pages from the five hundred pages in the original work. The court was especially inclined to allow substantial copying and public accessibility when the use was in the context of original criticism and analysis. This case is important reassurance to Professor Tran if she is not simply making straight copies, but is rather including selected excerpts amidst original teaching materials.
Moving Forward with Fair Use
Most scenarios in this chapter have the advantage of being roughly comparable to situations that have arisen in court decisions. Consequently, Professor Tran has the benefit of learning from relevant interpretations of the four factors. However, the law is a long way from addressing many of her common needs. For example, she would like to post to her course management site video clips for streaming to students. Fair use absolutely allows some uses, but exactly how much of any video can Professor Tran digitize and stream? In thinking about the factors of fair use, she might consider:
Nature: Is she using a feature release film? Is she using an educational video? Is the film marketed specifically for education? Is it highly creative, or is it relatively simple content, such as news events or explanations?
Amount: Is she using brief clips? Does she need the “heart of the work”? Can she post the entire video? Does it matter if the entire work is ten minutes or two hours?
Effect: Is the film reasonably available for students to purchase additional copies at a low price? Is it a foreign film that is not easily available or is only in a different region code? Is the video marketed specifically for education, or is it of more general appeal? Has Professor Tran, or her library or university, purchased the film, thereby contributing to the market for such works?
Professor Tran and many educators throughout the country are struggling with these questions and are reaching different answers about the scope of fair use. Like all applications of fair use to new technologies, the law lags behind. Recently, UCLA was threatened with litigation involving similar uses of video. The university has reevaluated its standard of fair use, and the possible application of the TEACH Act, concluding that it can digitize and stream many videos. We will need to watch these developments and learn from the experiences at UCLA and elsewhere.
As Professor Tran pursues a range of activities, from simple quoting to creating innovative teaching materials, she regularly encounters questions about fair use. The answer to these questions is routinely: “It depends.” The most important thing to remember is that fair use is flexible and highly dependent on the specific facts of each situation. Fair use can apply in all of these situations and more. It can apply to a full range of materials, from text and software to music and art. Fair use has enormous potential to support Professor Tran’s work, even if it does not always allow everything.
The flexibility of fair use can also make it challenging and at times downright frustrating. The flexibility of fair use means that it often has no clear, firm, or established limits. It is variable in its scope, and its meaning is open to debate. The next chapter examines the guidelines that have attempted to bring some clarity to the law. In the process, however, they also have done considerable harm to the greatest virtues of fair use: its flexibility and adaptability to new situations and new demands.
Acting in Good Faith
As she works through fair use, Professor Tran is likely to feel a burden of responsibility and an accompanying risk of legal liability. Indeed, chapter 14 of this book tells of severe consequences that may befall an infringer of someone’s copyrighted work. Congress recognized the dilemma, however, that educators and librarians face when applying fair use. The law therefore includes an important provision that eliminates much of the financial liability Professor Tran could otherwise face, but she will have that advantage only if she applies the law of fair use in a reasonable and good faith manner.
Chapter 14 of this book offers more details, but for now the message is clear: If Professor Tran takes the initiative to learn and apply the factors of fair use, she likely will have the benefit of greatly reduced liability. Do not overlook the better and more direct message: if Professor Tran learns and applies the factors of fair use, she also stands a good chance of actually being within the law and in full accord with fair use. In the process, Professor Tran should keep notes about her decision, and possibly use the fair use checklist in appendix B to help document her thinking and conclusion. Maintaining records and notes can go a long way to help confirm her informed and good faith decisions and protect her in the event of legal challenge.
Notes
1. Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991). The author of this book examined the court’s ruling shortly after it was handed down. Kenneth D. Crews, “Federal Court’s Ruling Against Photocopying Chain Will Not Destroy ‘Fair Use’,” Chronicle of Higher Education, April 17, 1991, p. A48.
2. Higgins v. Detroit Educational Television Foundation, 4 F.Supp.2d 701 (E.D. Mich. 1998).
3. Los Angeles Times v. Free Republic, 54 U.S.P.Q.2d 1453 (C.D. Cal. 2000).
4. Infinity Broadcasting Corporation v. Kirkwood, 63 F.Supp.2d 420 (S.D.N.Y. 1999).
5. Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).
6. Sandoval v. New Line Cinema Corporation, 147 F.3d 215 (2d Cir. 1998). The district court ruled that the activity was within fair use, but the court of appeals was even more generous and called the use “de minimis.”
7. A & M Records, Inc. v. Napster, Inc., 284 F.3d 1091 (9th Cir. 2002).
8. Field v. Google Inc., 412 F.Supp.2d 1106 (D.Nev. 2006).
9. 792 F.Supp. 132 (D.Mass. 1992).
10. A few cases have addressed fair use of such diverse works, and some of them are summarized later in this chapter.
11. 803 F.2d 1253 (2d Cir. 1986), cert. denied, 481 U.S. 1059 (1987).
12. The pending case involving electronic reserves at Georgia State University may become the first case to address squarely these issues. See Cambridge University Press v. Patton, No. 1:08cv1425 (N.D. Ga. filed Apr. 15, 2008) (pending).
13. 758 F.Supp. 1522 (S.D.N.Y. 1991).
14. 99 F.3d 1381 (6th Cir. 1996), cert. denied, 520 U.S. 1156 (1997).
15. 60 F.3d 913 (2d Cir. 1994), cert. dismissed, 516 U.S. 1005 (1995).
16. The CCC has begun to offer an annual license to educational institutions. The service has not been widely adopted, and experience thus far is limited. Educational institutions may want to follow developments and the debates among bloggers about the merits of and problems with such a license.
17. 54 U.S.P.Q.2d 1453 (C.D. Cal. 2000).
18. 55 F.Supp.2d 1113 (D.Nev. 1999).
19. 448 F.3d 605 (2d Cir. 2006).
20. 364 F.3d 471 (2d Cir. 2004). Another important case allowed, in a scholarly study, the use of lengthy excerpts from an unpublished novel by Marjorie Kinnan Rawlings. Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998).