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Fair Use It or Lose It
Copyright owners’ threats erode free expression

Fair use is an essential part of intellectual property (IP) law, which includes the law of copyright and trademark. It allows anyone to copy part—sometimes all—of a work without permission, for purposes such as commentary, criticism, news reporting and education. The copyright law lists four factors to be considered in evaluating a fair use claim: the purpose and character of the use; the nature of the copyrighted work; the amount and importance of what was copied; and the effect on the market for the copyrighted work. There are also fair use and First Amendment defenses in trademark law.

Collage, appropriation art, musical mash-ups and Web-based morphing—all integral to creativity today—depend on the fair use and free expression safeguards in IP law. Without them, owners could exercise absolute control over even a short quotation from a work they own—or a parody like “Food Chain Barbie.” They could use this power to silence discourse, frustrate artistic creation, and kiss commentary they didn’t like, by refusing to grant permission for quotes or reproductions.

Artists, scholars and others who contribute to culture are often confused about fair use. There is a serious need for community support and pro bono legal help. A substantial number (more than 20 percent) of cease-and-desist and take-down letters on the Chilling Effects site stated weak IP claims or involved speech with a strong free expression or fair use defense. The disconnect between the law and the claims made in many cease-and-desist or take-down letters is striking.

In part because fair use is risky, unpredictable and under pressure from the clearance culture, “copyleft” activists have looked for other ways of countering overzealous copyright control. One innovative alternative is Creative Commons, which provides sample licenses that copyright owners can use to allow copying of their works. Millions of Creative Commons licenses have been adopted, but they depend, of course, on the willingness of the owner. Fair use works on the opposite principle—that it should not cost money or require permission to make reasonable use of words and images that are part of our culture. Fair use is irreplaceable precisely because it doesn’t depend on payment, procedures or permission. It needs to be defended, promoted and, most of all, used.

Summaries of Fair Use Cases
Fair use. A movie company used a photo of a naked pregnant woman and superimposed the head of actor Leslie Nielsen. The photo was a parody using similar lighting and body positioning of a famous photograph taken by Annie Leibovitz of the actress Demi Moore for the cover of Vanity Fair magazine. Important factors: The movie company's use was transformative because it imitated the photographer's style for comic effect or ridicule. (Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 199.)

Measuring Fair Use: The Four Factors

Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors in resolving fair use disputes, which are discussed in detail below. It's important to understand that these factors are only guidelines and the courts are free to adapt them to particular situations on a case-by-case basis. In other words, a judge has a great deal of freedom when making a fair use determination and the outcome in any given case can be hard to predict.

The four factors judges consider are:

1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.

1.The Transformative Factor: The Purpose and Character of Your Use

In a 1994 case, the Supreme Court emphasized this first factor as being a primary indicator of fair use. At issue is whether the material has been used to help create something new, or merely copied verbatim into another work. When taking portions of copyrighted work, ask yourself the following questions:

* Has the material you have taken from the original work been transformed by adding new expression or meaning?
* Was value added to the original by creating new information, new aesthetics, new insights and understandings?

For further information, see the following Wiki articles:

Fair Use
Parody
Copyleft_art
Creative Commons