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Subject: Copyright Law FAQ (2/6): Copyright Basics
This article was archived around: 9 Apr 96 18:50:19 GMT
Posted-By: auto-faq 2.4
FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.3)
Part 2 - Copyright Basics.
Copyright 1994 Terry Carroll
(c) 1994 Terry Carroll
Last update: January 6, 1994.
This article is the second in a series of six articles that contains
frequently asked questions (FAQ) with answers relating to copyright law,
particularly that of the United States. It is posted to the Usenet
misc.legal, misc.legal.computing, misc.int-property, comp.patents,
misc.answers, comp.answers, and news.answers newsgroups monthly, on or
near the 17th of each month.
This FAQ is available for anonymous FTP from rtfm.mit.edu [188.8.131.52],
in directory /pub/usenet/news.answers/law/Copyright-FAQ, files part1 -
part6. If you do not have direct access by FTP, you can obtain a copy
via email: send a message to firstname.lastname@example.org with the following
lines in it:
DISCLAIMER - PLEASE READ.
This article is Copyright 1994 by Terry Carroll. It may be freely
redistributed in its entirety provided that this copyright notice is not
removed. It may not be sold for profit or incorporated in commercial
documents without the written permission of the copyright holder.
Permission is expressly granted for this document to be made available
for file transfer from installations offering unrestricted anonymous file
transfer on the Internet. Permission is further granted for this
document to be made available for file transfer in the data libraries of
associated with the following Compuserve Information Services fora: the
Legal Forum, the Desktop Publishing Forum, the Show Business Forum, and
the Ideas, Invention & Innovation Forum. This article is provided as is
without any express or implied warranty. Nothing in this article
represents the views of Santa Clara University or of the Santa Clara
Computer and High Technology Law Journal.
While all information in this article is believed to be correct at the
time of writing, this article is for educational purposes only and does
not purport to provide legal advice. If you require legal advice, you
should consult with a legal practitioner licensed to practice in your
Terry Carroll, the FAQ-maintainer, is a computer professional, and is
currently (January 1994) a student in his final semester at Santa Clara
University School of Law, is currently Editor-in-Chief of the Santa Clara
Computer and High Technology Law Journal, and is seeking employment as an
If you have any additions, corrections, or suggestions for improvement to
this FAQ, please send them to one of the following addresses, in order of
I will accept suggestions for questions to be added to the FAQ, but
please be aware that I will be more receptive to questions that are
accompanied by answers. :-)
The following table indicates the contents of each of the parts of the
Part 1 - Introduction (including full table of contents).
Part 2 - Copyright basics.
Part 3 - Common miscellaneous questions.
Part 4 - International aspects.
Part 5 - Further copyright resources.
Part 6 - Appendix: A note about legal citation form, or, "What's
all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?"
TABLE OF CONTENTS (for this part).
Part 2 - Copyright Basics.
2.1) What is a copyright?
2.2) What is "public domain?"
2.3) I just wrote a great program/novel/song/whatever. How can I
get a copyright on it?
2.4) How long does a copyright last? Does it need to be renewed?
2.5) What advantages are there to registering my work with the
2.6) How can I register a copyright with the U.S. Copyright
2.7) What advantages are there to including a copyright notice on
2.8) Can I ever use a copyrighted work without permission of the
copyright holder, or "What is 'fair use?'"
2.9) Fair use - the legal basis of the doctrine.
2.1) What is a copyright?
A copyright is a right of intellectual property, whereby authors obtain,
for a limited time, certain exclusive rights to their works. In the
United States, copyright is exclusively federal law, and derives from the
"copyright clause" of the Constitution (Art. 1, sec. 8, cl. 8), which
provides Congress with the power "to promote science and the useful arts,
by securing for limited times to authors ... the exclusive right to their
Copyright protects only an author's original expression. It doesn't
extend to any ideas, system or factual information that is conveyed in a
copyrighted work, and it doesn't extend to any pre-existing material that
the author has incorporated into a work. 17 U.S.C. 102(b), 103.
The standard for originality is very low. "Original" in this context
means only that the work has its origin in the author. There is no
requirement that the work be different from everything that has come
before: it need only embody a minimum level of creativity and owe its
origin to the author claiming copyright. To use an extreme example, if
two poets, each working in total isolation and unaware of one another's
work, were to compose identical poems, both of the poems would meet the
originality requirement for purposes of the copyright statute. Feist
Publications, Inc. v. Rural Telephone Service Company, Inc., 111 S.Ct.
1282, 1287-88 (1991).
In the United States, these seven rights are recognized:
1) the reproductive right: the right to reproduce the work in
2) the adaptative right: the right to produce derivative works
based on the copyrighted work;
3) the distribution right: the right to distribute copies of
4) the performance right: the right to perform the copyrighted
5) the display right: the right to display the copyrighted work
6) the attribution right (sometimes called the paternity
right): the right of the author to claim authorship of the
work and to prevent the use of his or her name as the author
of a work he or she did not create;
7) the integrity right: the right of an author to prevent the
use of his or her name as the author of a distorted version
of the work, to prevent intentional distortion of the work,
and to prevent destruction of the work.
17 U.S.C. 106, 106A.
Not all of these rights apply to all types of works. For example, the
display right applies to literary, musical, dramatic and choreographic
works, pantomimes, and motion pictures and other audiovisual works. It
does not apply to sound recordings and to architectural works. The
attribution right and the integrity right apply only to works of visual
Also, not all rights have the same duration: in the U.S., rights 1-5
normally have a duration of the author's life plus 50 years, while rights
6-7 endure only for the life of the author.
These rights are not unbounded, and in the U.S., sections 107 through 120
of the copyright law catalog a series of restrictions on the rights.
Some of these restrictions are discussed elsewhere in the FAQ (see, e.g.,
sections 2.8, 2.9, and 3.7).
And, by the way, many persons erroneously spell it "copywrite,"
apparently because of the association with written material. The correct
word is "copyright." It derives from an author or publisher's right to
the copy (copy here being used in the sense that it is used in the
newspaper trade: the text of an article).
2.2) What is "public domain?"
In contrast to copyright is "public domain." A work in the public domain
is one that can be freely used by anyone for any purpose.
It used to be that if a work was published without notice, it lost all
copyright, and entered the public domain. That's no longer true, and now
public domain is more the exception than the rule.
There are still a number of ways that a work may be public domain.
- The copyright may have expired (see section 2.4).
- The work might be a work of the U.S. Government; such works
can't be copyrighted (see section 3.6).
- The work might be one that can't be copyrighted. For example,
titles, names, short phrases and slogans can't be copyrighted
(37 C.F.R. 202.1(a)). Note, however, they can be trademarks.
As far as copyright law is concerned, they're public domain,
but as far as trademark law is concerned, they might be
- The copyright might have been forfeited. For example, the work
may have been published without notice prior to the change in
the law that eliminated the notice requirement (March 1, 1988,
the effective date of the Berne Convention Implementation Act,
PL 100-568, 102 Stat. 2853).
- The copyright might have been abandoned. This is pretty rare.
Abandonment requires that the copyright holder intend to
abandon the copyright, and generally requires an unambiguous
statement or overt act on the part of the copyright holder that
indicates his or her intent to dedicate the work to the public
domain. National Comics Pub. v. Fawcett Pub., 191 F.2d 594,
598 (2d Cir., 1951). A statement that anyone who wishes to may
reproduce, perform, or display the work without restrictions
might be sufficient. Simply posting it on a computer network
is not abandonment.
There is a common belief that if someone infringes a copyright, and the
copyright owner does not sue or otherwise put a stop to the infringement,
the copyright is lost and the work goes into the public domain. There is
some pre-1988 law on this (e.g., Stuff v. E.C. Publications, 432 F.2d 143
(2d Cir., 1965) and Transgo v. Ajac Transmission Parts, 768 F.2d 1001
(9th Cir. 1985)), but it seems to derive mostly from the fact that the
copyright holder had acquiesced in the publication of the work without
notice back when notice was a requirement. It was the publication
without notice, and not the lack of enforcement, that actually worked to
put the work in the public domain. This is forfeiture of copyright, not
abandonment. Because the notice requirement is now gone from copyright
law, these cases don't have much weight today.
I can't find anything that supports the idea that failure to assert a
copyright against an infringer can alone lead to placing the work in the
public domain (if you have any authoritative information on this, please
drop me a note at one of the addresses listed in the introduction). Of
course, circumstances may be such that the ability to sue a particular
infringer might be waived (e.g., a statute of limitations may expire (see
section 3.4), or if the infringer has reasonably relied to his or her
detriment on the copyright holder's failure to sue, the doctrine of
laches may bar a suit), but that's only with respect to that particular
infringer, and does not affect the status of the copyright with respect
Sometimes you'll see a program on the network accompanied by a statement
like "This program is public domain. It may be freely distributed, but
you may not charge more for it than the cost of the media." Statements
like these are contradictory. If the program is public domain, you can
do whatever you want with it, including charging whatever you want
(although you might not get it). In this example, what the programmer
really wants to do is to retain the copyright, but provide a non-
exclusive license to copy and distribute the work, with a condition on
the license that only the cost of the media may be charged for it. In
this case, where the programmer has, in two consecutive sentences, both
declared the work to be public domain and asserted a copyright in the
work, it's unpredictable whether a court would interpret this as
If there is any restriction upon the use of the work, even the
restriction that it cannot be sold, the work is not public domain.
Rather, it's copyrighted, and the restrictions are essentially
limitations on a licensee using one or more of the exclusive rights
described above. For example, the restriction that a work may only be
given away for free is a limitation using the distribution right.
Once a work is in the public domain, whether by expiration of copyright
or by expressly being dedicated to the public domain by its copyright
holder, it can never again regain copyrighted status.
2.3) I just wrote a great program/novel/song/whatever. How can I get a
copyright on it?
Good news. You already have. In the United States, as in most nations,
a work is copyrighted as soon as it is created:
Copyright protection subsists . . . in original works of
authorship fixed in any tangible medium of expression, now
known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with
the aid of a machine or device. 17 U.S.C. 102(a).
A work is "fixed" in a tangible medium of expression when its
embodiment in a copy or phonorecord, by or under the authority
of the author, is sufficiently permanent or stable to permit it
to be perceived, reproduced, or otherwise communicated for a
period of more than transitory duration. 17 U.S.C. 101.
What this means in simple terms is that as soon as you've created your
original work, it's copyrighted. Because of the "either directly or with
the aid of a machine or device" provision, it doesn't matter whether
you've printed it out, or if it's only on your hard drive or floppy disk.
You don't need any special formalities, such as registering the work with
the Copyright Office, or providing a copyright notice (notice stopped
being a requirement when the U.S. signed the Berne Convention and enacted
Berne Convention Implementation Act in 1988; see section 4.1 for more
That being said, you might want to register the work and provide a
copyright notice anyway. There are certain advantages to doing so (see
sections 2.5 and 2.7).
2.4) How long does a copyright last? Does it need to be renewed?
The law of copyright duration has undergone many twists and turns. There
have been several major changes in copyright duration law that contribute
to this complication:
- the number of years used in calculating durations has changed,
from either 28 or 56 to either 50, 75 or 100, depending on the
type of work.
- the basis for determining the endpoint of a copyright has
changed; it used to be measured based on when the work was
published, now it's based on when the work's author dies, or
sometimes on when the work was created and/or when it was
- There used to be multiple copyright terms, and if the copyright
was not renewed at the end of the first term, it lapsed.
Today, except as a minor hangover from the past, there is a
single copyright term; renewal is not required.
- Not all the provisions changed at the same time. For one thing,
although the Copyright Act of 1976 did not go into effect until 1978,
well before the draft of the new law was complete, it was likely that
the new statute would extend duration of copyright. Congress
apparently wanted to minimize the impact on authors who would
otherwise lose the benefit of the extended duration, and through a
series of several special purpose laws (Public Laws 87-668, 89-142,
90-141, 90-416, 91-147, 91-555, 92-170, 92-566 and 93-573, and section
304(b) of the 1976 Copyright Act), delayed the expiration of
copyrights that would otherwise have occurred in the 1962 - 1978
interim. The net cumulative effect is as if the duration provisions
had begun to take effect in 1962, 16 years earlier than the rest of
the Act. For another thing, even when the concept of multiple
"copyright terms" was discarded, for a long time, works that were
still in their first term of copyright still needed to be renewed to
avoid going into public domain. This requirement remained in place
until it was finally removed in 1992 (by P.L. 102-307, 106 Stat. 264).
So while the law at anyone time has always been pretty simple, the
cumulative effect of the changes have made the deceptively simple
question "how long does a copyright last?" quite complicated to answer.
The following discussion is based on a current year of 1994. I've tried
to indicate the basis for calculations here, so you can see which need to
be recalculated year by year, and which are okay as is. Regardless of
the scheme used to compute duration, under 17 U.S.C. 305, copyrights
always expire on December 31 of the expiration year, so at the time of
this writing (January 1993), December 31, 1993 is the most recent date on
which any copyright has expired.
With these concerns in mind, here's a short analysis of copyright
Generally, for works created in 1978 or later, a copyright lasts for
fifty years beyond the life of the work's author, after which it lapses
into public domain. 17 U.S.C. 302(a). If the work is prepared by two or
more authors (a "joint work"), its copyright lasts for fifty years after
the last surviving author dies. 17 U.S.C. 302(b). For anonymous and
pseudonymous works, and for works made for hire, copyright exists for 100
years from the date of creation, or 75 years from the date of first
publication, whichever comes first. 17 U.S.C. 302(c). No renewal is
necessary or permitted. (The year 1978 in this paragraph is because
January 1, 1978 is the date on which the Copyright Act of 1976 took
For works to which the attribution right and integrity right apply (see
section 2.1), these rights endure only for the lifetime of the author.
17 U.S.C. 106A(d).
For works published in the years 1964 through 1977, copyright lasts for
75 years from date of publication. 17 U.S.C. 304(a). In the past,
copyright lasted only for 28 years, unless a renewal was filed with the
Copyright Office. Such a renewal obtained an additional 47 years of
protection. Renewal was made optional in June 1992 by P.L. 102-307, 106
Stat. 264. (The year 1964 comes from the fact that renewal was made
optional in 1992, and 1992 minus 28 (the length of the first copyright
period) equals 1964.)
For works published in the years 1904 through 1963, the copyright lasted
for 28 years from date of publication; if the copyright was not renewed,
it lapsed, and the work went into the public domain. Another 28 years of
protection could be obtained by filing a renewal, for a total term of 56
years (1906 comes from the fact that the U.S. effectively switched to a
47-year second term in 1962, and 1962 minus 56 (the old maximum duration
of two 28-year terms) equals 1906). If the copyright was not renewed
after its initial 28-year term, the work lapsed into public domain.
Generally, all copyrights secured in 1918 or earlier lapsed at the latest
in 1993 and are now in public domain (1993 (last year) minus 75 equals
1918). Copyrights secured in the period 1919 through 1949 continue to
exist only if they were renewed, and expire in the period 1994 through
Finally, just to complicate things: if the work was created but not
published prior to 1978, its copyright duration is calculated as if it
had been created on January 1, 1978, and lasts as long as that
calculation specifies, or through 2002, whichever is later. If the work
is published in 2002 or earlier, then the copyright lasts as long as that
calculation specifies, or through 2027, whichever is later 17 U.S.C.
Whew! And to think I went into copyright law instead of tax to avoid the
2.5) What advantages are there to registering my work with the Copyright
In order to sue for infringement, with some exceptions, your work must be
registered with the Copyright Office. However, you may register after
the infringement occurs, as long as it's before filing your lawsuit.
The advantage to registering prior to infringement is that it allows you
some additional remedies that aren't available if you registered after
infringement: namely, statutory damages and attorney's fees. 17 U.S.C.
"Statutory damages" are damages specified in the statute, as opposed to
"actual damages," which are damages that you can demonstrate in court
that you actually suffered. If you registered your work prior to
infringement, you can skip showing any actual damage, and just elect to
receive statutory damages. 17 U.S.C. 504(a).
Statutory damages for copyright infringement are $500 - $20,000, as
determined by the judge. If the infringer proves that he or she was not
aware and had no reason to believe that his or her acts constituted
infringement, the court may lower damages to as low as $200 per
infringement. On the other hand, if the plaintiff proves that the
defendant's infringement was "committed willfully," the judge may award
damages to as high as $100,000 per infringement. 17 U.S.C. 504(c).
In deciding whether to register your work, you must weigh the probability
of an infringement action (and the advantages of attorney's fees and
statutory damages in such an action) against the $20 cost of
CAVEAT: On February 16, 1993, the Copyright Reform Act of 1993 was
introduced in both houses of the 103nd Congress (H.R. 897 in the House of
Representatives and S.373 in the Senate). If the bill passes, much of
the information in this entry will be rendered incorrect. Specifically,
the bill would, among other things, remove the requirement for
registration prior to bringing suit, and would remove the restrictions on
statutory damages that are described above.
2.6) How can I register a copyright with the U.S. Copyright Office?
To register a copyright, file the appropriate form with the U.S.
Copyright Office, including the payment for registration costs ($20).
For most types of work being published in the United States, two copies
of the work being registered must be deposited with the Copyright Office
for the use of the Library of Congress. Strictly speaking, the deposit
is not a requirement for copyright. However, failing to make the deposit
at time of publication can result in fines. Some works are exempt from
the deposit requirement.
Registration forms may be ordered by calling the Copyright Office Hotline
(see section 5.1). When the answering machine answers, leave a message
with your name and address, identifying the material you are ordering.
Ask for the form either by form number, or by Copyright Office
Information Package number. A Copyright Office Information Package is a
collection of information on registering copyright for a particular type
of work. It includes the appropriate forms, instructions for completing
them and other useful information.
Here is a list of commonly requested forms and Copyright Office
Information Packages, arranged by type of copyrighted work:
- Books, manuscripts and speeches and other nondramatic literary
works: Form TX, Package 109
- Computer programs: Form TX, Package 113
- Music (sheet or lyrics): Form PA, Package 105
- Music (sound recording): Form SR, Package 121
- Cartoons and comic strips: Form VA, Package 111
- Photographs: Form VA, Package 107
- Drawings, prints, and other works of visual arts: Form VA,
- Motion pictures and video recordings: Form PA, Package 110
- Dramatic scripts, plays, and screenplays: Form PA, Package 119
- Games: Form TX, Package 108
2.7) What advantages are there to including a copyright notice on my
As noted in section 2.3, under U.S. law, a work is copyrighted as soon as
it is created. No notice is required to retain copyright. While most of
the world has operated this way for some time, this is a comparatively
recent change in U.S. copyright law, as of March 1, 1988, the effective
date of the Berne Convention Implementation Act, PL 100-568, 102 Stat.
2853 (See sections 4.1 and 4.2 for a discussion of the Berne Convention).
Although notice is no longer a requirement, there are still some sound
reasons for using one anyway.
If you include a copyright notice on a published copy of your work to
which the defendant in an infringement suit had access, he or she may not
plead "innocent infringement" (i.e., that he or she was not aware and had
no reason to believe that his or her acts constituted infringement, the
so-called "innocent infringement" defense) in mitigation of actual or
statutory damages. 17 U.S.C. 401(d), 402(d).
Unlike the decision of whether to register your work, this is a no-
brainer, since it's simple and free: just include a notice on every
published copy of the work.
A proper copyright notice consists of three things: 1) the letter "C" in
a circle (called, logically enough, the "copyright symbol"), or the word
"Copyright," or the abbreviation "Copr."; 2) the year of first
publication; 3) the name of the copyright owner. 17 U.S.C. 401(b).
Using "(C)" in place of a copyright symbol is not a good idea. To the
best of my knowledge, no court has expressly ruled one way or another
whether "(C)" is a sufficient substitute for a copyright symbol. One
case, Videotronics v. Bend Electronics, 586 F.Supp. 478, 481 (D. Nev.
1984), implies that it is not sufficient; another, Forry v. Neundorfer,
837 F.2d 259, 266 (6th Cir., 1988), implies that it might be. While
courts are generally lenient in allowing for what makes up a valid
notice, it's best to be squarely within the statute. If you can't make a
copyright symbol, either spell the word out, or use the "Copr."
As a side note with regard to international protection, the Universal
Copyright Convention requires that, at a minimum, all signatory nations
that require notice must accept the C-in-a-circle variant; it does not
provide a provision for a spelled out variant. On the other hand, most
nations that have signed a copyright treaty are signatories to the Berne
Convention, which forbids requiring a notice as a condition to copyright.
See section 4.1 for details.
For a sound recording, the notice requirement is similar, except that it
uses the letter "P" (for "Phonorecord") in a circle, plus the year and
owner name. 17 U.S.C. 402(b). The statute does not provide a spelled
out alternative to the P-in-a-circle.
2.8) Can I ever use a copyrighted work without permission of the
copyright holder, or "What is 'fair use?'"
In any analysis of copyright, it's important to remember the law's
constitutional purpose: to promote science and the useful arts. "Fair
use" is a doctrine that permits courts to avoid rigid application of the
copyright statute when to do otherwise would stifle the very creativity
that copyright law is designed to foster. The doctrine of fair use
recognizes that the exclusive rights inherent in a copyright are not
absolute, and that non-holders of the copyright are entitled to make use
of a copyrighted work that technically would otherwise infringe upon one
or more of the exclusive rights. Although fair use originated "for
purposes such as criticism, comment, news reporting, teaching, ...
scholarship, or research," it also applies in other areas, as some of the
examples below illustrate. However, courts seem more willing to accept
an assertion of fair use when the use falls into one of the above
Perhaps more than any other area of copyright, fair use is a highly fact-
specific determination. Copyright Office document FL102 puts it this
way: "The distinction between 'fair use' and infringement may be unclear
and not easily defined. There is no specific number of words, lines, or
notes that may safely be taken without permission. Acknowledging the
source of the copyrighted material does not substitute for obtaining
The document then quotes from the 1961 Report of the Register of
Copyrights on the General Revision of the U.S. Copyright Law., providing
the following examples of activities that courts have held to be fair
- Quotation of excerpts in a review or criticism for purposes of
illustration or comment;
- Quotation of short passages in a scholarly or technical work
for illustration or clarification of the author's observations;
- Use in a parody of some of the content of the work parodied;
- Summary of an address or article with brief quotations, in a
- Reproduction by a library of a portion of a work to replace
part of a damaged copy;
- Reproduction by a teacher or student of a small part of a work
to illustrate a lesson;
- Reproduction of a work in legislative or judicial proceedings
- Incidental and fortuitous reproduction in a newsreel or
broadcast, of a work located in the scene of an event being
Document FL102 is included in Copyright Office information kit 102 ("Fair
Use"), which can be ordered from the Copyright Office (see section 5.1).
Carol Odlum <email@example.com>, a free-lance editor, has provided a
set of guidelines used by one publisher as rules of thumb. These
certainly have no legal force, but it's instructive to note at least one
publisher's interpretation of what "fair use" means in the real world.
The publisher uses the following criteria for determining when permission
of the copyright holder must be sought in order for the work to be used:
- Prose quotations of more than 300 words from a scholarly book.
(If a source is quoted several times for a total of 300 words
or more, permission must be obtained.);
- Prose quotations of more than 150 words from a popular,
- Prose quotations of more than 50 words from a scholarly
- Quotations of more than 2 lines of poetry or lyrics;
- Quotations of more than 1 sentence from a popular magazine or
- Quotations of any length from letters or other personal
communications, interviews, questionnaires, speeches,
unpublished dissertations, and radio or television broadcasts.
- Illustrations -- including drawings, graphs, diagrams, charts,
maps, artwork, and photographs -- created by someone else;
- Music examples of more than 4 measures;
- Tables compiled by someone else.
2.9) Fair use - the legal basis of the doctrine.
Section 2.8, above, describes fair use in a nutshell. This follow-on
entry provides a more detailed description of the doctrine for those
interested in the nuts and bolts.
There are four factors used to decide whether a particular use of a
copyrighted work is a fair use:
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or
value of the copyrighted work.
17 U.S.C. 107.
The remainder of this answer discusses how each of these factors has been
(1) The purpose and character of the use: In considering the purpose and
character of the use, courts have looked to two characteristics of the
use: whether the use is commercial and, somewhat less frequently, whether
the use is a "productive" one.
If the copyrighted work is being used commercially, e.g., all or part of
a copyrighted drawing being used in a commercially published book on
drawing techniques, that's a strike against it being fair use. On the
other hand, if the same drawing were used in a non-profit school to teach
children to draw, then this factor would be in favor of finding a fair
use. Most situations are somewhere in between. That is, a use might not
be commercial, but it's not necessarily non-profit educational, either.
Note, though, that the statute does not command this "commercial/non-
profit educational" balance, and not all courts use it, at least not by
itself. Commercial use might be forgiven if the use is characterized as
a "productive" or "transformative" use, i.e., a use of the material that
interprets or otherwise adds value to the material taken from the
copyrighted work. See Consumers Union v. General Signal Corp., 724 F.2d
1044, 1047 (2nd Cir. 1983) (noting that the use of one of Consumer Report
magazine's reviews of a vacuum cleaner in an advertisement was a fair
use, in part because the purpose and character of the advertisement was
in part to educate consumers). The Supreme Court has noted that the
distinction between "productive" and "unproductive" uses is not wholly
determinative, but is helpful in balancing the interests. Sony Corp. v.
Universal City Studios, 464 U.S. 417, 451 n.40 (1983).
(2) The nature of the copyrighted work: If the work being used is one
that is factual or functional in nature, then that's a point in favor of
use of that work being a fair use. That's because copyright isn't
available for facts themselves, and the courts recognize that it's kind
of dumb to force someone with a newspaper clipping to completely rewrite
it to avoid infringement (besides, a paraphrase is still an infringement,
because it qualifies as creating a derivative work, even if it's not a
direct copy). If the work is a fictional or artistic one, though, taking
the work is taking much more than any underlying facts. A fictional or
artistic work is more expressive than a factual one, so the copyright
(which is designed to protect expression) is stronger. Even in factual
works, however, where the portion used includes subjective descriptions
whose power lies in the author's individualized expression, this factor
might go against a finding of fair use, if the use exceeds that necessary
to disseminate the facts. See Harper and Row v. Nation Enterprises, 471
U.S. 539 (1985) (finding no fair use for infringement of former U.S.
President Ford's memoirs despite its factual content).
Another point that's often examined in looking at the nature of the
copyrighted work is whether the work has been published. Courts will
generally consider a use of an unpublished work as more likely to
infringe than a similar use of a published work. Harper and Row v.
Nation Enterprises, 471 U.S. 539, 564 (1985). This is for two reasons.
First, the first publication is often the most valuable to the copyright
holder. Second, it affects the copyright holder's ability to choose not
to publish the work at all. See Salinger v. Random House, 811 F.2d 90,
97 (2nd Cir. 1987).
As with the first factor, while the "fact/fiction" balance and
"published/unpublished" balance are two of the most common, they are not
commanded by the statute, which only requires considering the "nature of
the copyrighted work." For example, in Sega v. Accolade, 977 F.2d 1510,
1525 (9th Cir., 1993), the Court of Appeals noted that the nature of most
computer programs distributed in object code is that the functional (and
therefore unprotected) elements cannot be discerned without disassembly.
This supported the court's opinion that, in certain limited instances,
disassembling of a competitor's product to find interface information
that cannot be obtained in any other way is a fair use of the work,
despite the fact that code disassembly necessarily involves making a copy
of the copyrighted program.
(3) The amount and substantiality of the portion used in relation to the
copyrighted work as a whole: This appears simpler than it really is. On
the face of it, it means that if you incorporate 95% of a copyrighted
work into another work, it's a lot less likely to be a fair use than if
you take only a small portion, say, 5%. And that's true. However,
assessing this factor is a bit more complex than that simple statement.
Even if only a small portion of the work is used, if that portion is
"qualitatively substantial," e.g., if the portion used is essentially the
heart of the work, that use will be deemed to have been "substantial,"
and could go against a finding of fair use. See Harper and Row v. Nation
Enterprises, 471 U.S. 539 (1985) (finding no fair use for infringement of
former U.S. President Ford's memoirs, where the portion used (which
described Ford's decision to pardon former President Nixon) included "the
most interesting and moving parts of the entire manuscript"), and Roy
Export Co. v. Columbia Broadcasting System, 503 F.Supp. 1137 (S.D.N.Y.
1980) (taking of 55 seconds out of 89-minute film deemed "qualitatively
To confuse matters further, some courts have (probably erroneously)
interpreted this factor by looking at what percentage of the work _using_
the material is composed of material from the copyrighted work, rather
than what percentage of the copyrighted work was used. See, e.g.,
Association of American Medical Colleges v. Mikaelian, 571 F.Supp. 144
(E.D. Pa, 1983), aff'd 734 F.2d 3 (3rd Cir., 1984), aff'd 734 F.2d 6 (3rd
Cir., 1984). While this interpretation is probably erroneous, it's worth
bearing in mind that, at least in one judge's courtroom in the Eastern
District of Pennsylvania, that's how the statute will be interpreted.
(4) The effect of the use upon the potential market for or value of the
copyrighted work: The U.S. Supreme Court has stated that this factor is
"undoubtedly the single most important element of fair use." Harper and
Row v. Nation Enterprises, 471 U.S. 539 (1985). The late Professor
Melville Nimmer, in his treatise on copyright law, paraphrased it, "Fair
use, when properly applied, is limited to copying by others which does
not materially impair the marketability of the work which is copied."
Nimmer on Copyright, section 1.10[D]. If the use impacts the market for
the work, the use is less likely to be held to be a fair use.
Note also that the weighing is of the impact on the potential market, not
on the actual market. For example, although Playboy magazine does not
distribute its pictures in machine-readable form, it may choose to do so
in the future. One might argue that digitizing a picture and posting it
on the net does not impact the current market for the magazine originals.
However, it impacts the potential (but currently non-existent) market for
machine-readable copies. Because there is an impact on the potential
market, an analysis of this factor in such a situation would not support
a finding of fair use.
If all this sounds like hopeless confusion, you're not too far off.
Often, whether a use is a fair use is a very subjective conclusion. In
the Harper and Row case cited above, for example, the Supreme Court was
split 6-3. In the famous "Betamax case," Sony v. Universal City Studios,
464 U.S. 417 (1984) (in which the Supreme Court found that off-air non-
archival videotaping of broadcast television was a fair use), the split
was 5-4. In both of these cases, the District Court ruled one way (no
fair use in Harper and Row, fair use in Sony) and was reversed by the
Court of Appeals, which was then itself reversed by the Supreme Court.
This goes to show that even well-educated jurists are capable of
disagreeing on the application of this doctrine.