Tuesday, November 10, 2009
Is Fair Use Really Fair?
As it exists today, “fair use” is a confusing and complex problem for photographers
One of the most perplexing and confusing aspects of copyright law is the concept of “fair use.” Of the various limitations on the rights that copyright owners have under U.S. copyright law, fair use is the most widely known. Given the tremendous amount of confusion associated with this doctrine, and the difficulties involved in applying the current statutory embodiment of fair use to real-world situations, it’s hardly surprising that fair use also has become what’s perhaps the most contentious limitation on the rights that copyright owners enjoy today.
Fair use originated as a judicially created doctrine that permitted an accused infringer to use copyrightable material without the consent of the copyright owner. In effect, the doctrine limited the rights afforded to copyright owners in certain circumstances. While fair use didn’t appear in the earlier versions of U.S. copyright law, it was added to the last major rewrite, the Copyright Act of 1976. The doctrine is now codified at 17 U.S.C. §107. As codified, fair use is “not an infringement of copyright” for certain types of limited purposes; the statute even includes several examples of such purposes, including criticism, commentary, news reporting, education and research.
What makes fair use a difficult concept has been succinctly summed up in one of the Copyright Office’s fact sheets: “The distinction between fair use and infringement may be unclear and not easily defined.” The Copyright Act itself provides four factors to be considered when attempting to determine whether a use is a fair use; however, the factors provide little guidance, particularly to non-lawyers.
The Four Fair Use Factors
The current fair use statute includes four factors that courts are to consider when attempting to determine whether a particular use is a fair use:
- the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion of the copyrighted work used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The problem that becomes readily apparent is that these factors provide very little guidance as to what constitutes fair use and what constitutes infringement. This is particularly true when attempting to determine whether use of a photograph constitutes fair use. It doesn’t help that two different courts can be confronted with a similar set of circumstances, apply the same set of fair use factors and reach entirely opposite conclusions. Such discrepancies promote a cynical view: Instead of judges analyzing the factors and reaching a conclusion, a judge makes a gut decision and then uses these malleable factors in order to justify that decision. The reality is that this is one of the paradoxes of fair use, namely, that two people can view the same use and come to completely different conclusions.