Fair Use - Common Misunderstandings

Common Misunderstandings

Fair use is commonly misunderstood because of its deliberate ambiguity. Here are some of the more common misunderstandings with explanations of why they are wrong:

• Any use that seems fair is fair use. In the law, the term fair use has a specific meaning that only partly overlaps the plain-English meaning of the words. While judges have much leeway in deciding how to apply fair use guidelines, not every use that is commonly considered "fair" counts as fair use under the law.
• Fair use interpretations are unique and limited. Fair use is decided on a case by case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different time can make a difference due to changing social, technological, or other surrounding circumstances.
• If it's not fair use, it's copyright infringement. Fair use is only one of many limitations, exceptions, and defenses to copyright infringement. For instance, the Audio Home Recording Act establishes that it is legal in some circumstances to make copies of audio recordings for non-commercial personal use.
• It's copyrighted, so it can't be fair use. On the contrary, fair use applies only to copyrighted works, describing conditions under which copyrighted material may be used without permission. If a work is not copyrighted, fair use does not come into play, since public-domain works can be used for any purpose without violating copyright law.
  • Note: In some countries (including the United States of America), the mere creation of a work establishes copyright over it, and there is no legal requirement to register or declare copyright ownership
• Acknowledgment of the source makes a use fair. Giving the name of the photographer or author may help, but it is not sufficient on its own. While plagiarism and copyright violation are related matters—-both can, at times, involve failure to properly credit sources—-they are not identical. Plagiarism—using someone's words, ideas, images, etc. without acknowledgment—is a matter of professional ethics. Copyright is a matter of law, and protects exact expression, not ideas. One can plagiarize even a work that is not protected by copyright, such as trying to pass off a line from Shakespeare as one's own. On the other hand, citing sources generally prevents accusations of plagiarism, but is an insufficient defense against copyright violations. For example, reprinting a copyrighted book without permission, while citing the original author, would be copyright infringement but not plagiarism.
• Noncommercial use is invariably fair. Not true, though a judge may take the profit motive or lack thereof into account. In L.A. Times v. Free Republic, the court found that the noncommercial use of LA Times content by the Free Republic Web site was in fact not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for.
• Strict adherence to fair use protects you from being sued. Fair use is an affirmative defense against an infringement suit; it does not restrain anyone from suing. The copyright holder may legitimately disagree that a given use is fair, and they have the right to have the matter decided by a court. Thus, fair use does not guarantee that a lawsuit will be prevented.
• The lack of a copyright notice means the work is public domain. Not usually true. United States law in effect since March 1, 1989, has made copyright the default for newly created works. For a recent work to be in the public domain the author must specifically opt-out of copyright. For works produced between January 1, 1923 and March 1, 1989, copyright notice is required; however, registration was not required and between January 1, 1978 and March 1, 1989 lack of notice is not necessarily determinative, if attempts were made immediately to correct the lack of notice. Any American works that did not have formal registration or notice fell into the Public Domain if registration was not made in a timely fashion. For international works, the situation is even more complex. International authors who failed to provide copyright notice or register with the US copyright office are given additional contemporary remedies that may restore American copyright protection given certain conditions. International authors/corporations who fail to meet these remedies forfeit their copyright. An example of a company who failed to prove copyright was Roland Corporation and their claimed copyright on the sounds contained in their MT-32 synthesizer.
• It's okay to quote up to 300 words. The 300-word limit is reported to be an unofficial agreement, now long obsolete, among permissions editors in the New York publishing houses: "I'll let you copy 300 words from our books if you let us copy 300 words from yours." It runs counter to the substantiality standard. As explained above, the substantiality of the copying is more important than the actual amount. For instance, copying a complete short poem is more substantial than copying a random paragraph of a novel; copying an 8.5×11-inch photo is more substantial than copying a square foot of an 8×10-foot painting. In 1985, the US Supreme Court held that a news article's quotation of approximately 300 words from former President Gerald Ford's 200,000 word memoir was sufficient to constitute an infringement of the exclusive publication right in the work.
• You can deny fair use by including a disclaimer. Fair use is a right granted to the public on all copyrighted work. Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use a non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or licence agreements may take precedence over fair use rights.
• If you're copying an entire work, it's not fair use. While copying an entire work may make it harder to justify the amount and substantiality test, it does not make it impossible that a use is fair use. For instance, in the Betamax case, it was ruled that copying a complete television show for time-shifting purposes is fair use.
• If you're selling for profit, it's not fair use. While commercial copying for profit work may make it harder to qualify as fair use, it does not make it impossible. For instance, in the case Campbell v. Acuff-Rose Music, Inc., it was ruled that commercial parody can be fair use. Hip-hop group 2 Live Crew successfully made a parody, sold for profit, of the song "Oh, Pretty Woman".