more on fair use

Here's a brief article by a lawyer and principal of a Baltimore firm that
recently contacted me w/ questions about Molotov – I went to their
website and discovered some interesting case studies. Here's one article
that spells out the four factors of fair use as set out in Section 107 of
the Copyright Act:

A Book by Any Other Cover
2002-11-08
http://www.agtlawyers.com/thefirm/newsitem.php?itemI

The man is a street artist plying his craft in a Chicago suburb. He
crafted forty, four by two foot sculptures of books available in the
town's library and placed them on sidewalks around the village. The covers
and spines of the sculptures were fairly accurate copies of the real thing
albeit much larger. The idea behind the art was to encourage kids to read,
and the sculptures would be sold with all proceeds donated to a local
charity.

The artist's publisher telephoned and wanted to know whether the
sculptures violated copyright law and whether she would draw hostile fire
by publishing a catalog of the works. "Good question," I responded. But I
was ready with a good answer.

Facially, the artist's actions would appear to violate the copyright law.
Someone, after all, does own the art work on the cover of the books the
artist copied. And the Copyright Act does grant to the owner of the
copyright the exclusive right to reproduce the work and prepare new works
based on the old. Yet, while the copyright law grants what amounts to a
monopoly to the owner of the work, I knew there was more to consider.

"Let's analyze fair use for a moment and see if that helps," I replied. I
explained to the publisher that fair use of a copyrighted work is a
limitation on the exclusive rights granted to a copyright owner.
"Generally speaking," I said, "fair use exists to allow a copyrighted work
to be used for educational purposes, criticism, newsreporting, scholarship
and the like. But it's not a talisman."

Section 107 of the Copyright Act sets out four non-exclusive factors to be
considered by courts in determining whether the use of a copyrighted work
is a fair use. This section provides no attempt to draw a bright line
between fair use and infringement. Rather it merely lists factors and does
not even instruct on the weight to be accorded each. To answer the
publisher's question, I needed to evaluate the artist's use against each
of the four factors.

Purpose and character of use. Is the use commercial or non-profit? Is it
for educational purposes or to make a buck? For a long time, a finding of
commercial use was fatal to the fair use defense. That has changed in the
past decade, but courts are still skeptical, and that shows in the weight
they accord a commercial use. Nevertheless, this artist was not motivated
by profit, instead creating art to raise reading awareness and money for
charity. And the message conveyed by the sculpture was clearly educational
in that people are encouraged to read. Factor one to the artist.

The nature of the copyrighted work. The more creative, the more
protection. Math texts will enjoy less protection than art or fiction.
Book covers, as art and illustration, are likely to enjoy strong
protection under copyright law. Even where the work copied is highly
creative, the reason for the copying may militate against the importance
of this factor. Copying for parody is an example. Here, the artist copied
original art. Factor two to the books.

The third factor, amount and substantiality of the portion of the work
used, gets down to the nub of whether fair use should be permitted. If the
idea behind prohibiting infringement is to protect the market for an
author's work, the courts must examine this factor very carefully. Too
much used, and the copy becomes a substitute for the original destroying
the market for the original work in the name of fair use. This is exactly
why a news show critiquing a new film cannot use large portions of the
film, even though the purpose behind the viewing is to comment or
criticize, two of the accepted reasons for allowing a fair use. Although
the artist took all of the work, that doesn't tell the whole story.

The third factor dove-tails with the fourth, and is perhaps the most
important factor - the effect of the use on the author's potential market
for the original work. Arguably, almost every fair use deprives the
original author of the possibility of entering into a license for the use
of the work in a new work for which fair use is claimed and therefore
adversely affects the potential market for the work. If the test for the
effect on the potential market is whether the new use somehow supplants
the market for the original, the question becomes easier to answer, and
numerous courts have adopted this test including the Supreme Court in a
recent decision dealing with parody of music where that Court appeared to
overlook the possibility that the original author could have licensed a
rap version of its song. If the artist, then, merely deprives the author
of the book jacket from a licensing opportunity, the test should be
decided in the artist's favor. On the other hand, if people will visit the
sculptures instead of reading the original books, the original author gets
the nod, which is not likely.

The analysis of whether a defendant is entitled to fair use is not simple,
and the statute's lack of explanation does not help. People who want to
borrow the copyrighted works of authors must remember that fair use is an
affirmative defense - that is to say that the issue of copying is
generally conceded, yet they claim the copying is not illicit. This means
that the burden of proving fair use is always going to belong to the
person claiming entitlement to the defense, or to put it another way, one
must have faith that the bullets from the firing squad can be caught by
the teeth.

In this case, the factors and circumstances lean towards the artist. Even
if the artist was cognizant of the fair use defense where he created the
sculptures, he probably believed there was little chance he would be sued.

by Jim Astrachan

+
-