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Subject: Copyright Law FAQ (2/6): Copyright Basics

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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 [18.70.0.209], 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 mail-server@rtfm.mit.edu with the following lines in it: send usenet/news.answers/law/Copyright-FAQ/part1 send usenet/news.answers/law/Copyright-FAQ/part2 send usenet/news.answers/law/Copyright-FAQ/part3 send usenet/news.answers/law/Copyright-FAQ/part4 send usenet/news.answers/law/Copyright-FAQ/part5 send usenet/news.answers/law/Copyright-FAQ/part6 quit 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 jurisdiction. 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 attorney. 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 preference: 71550.133@compuserve.com tcarroll@scuacc.scu.edu 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. :-) FAQ ORGANIZATION. The following table indicates the contents of each of the parts of the FAQ. 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 Copyright Office? 2.6) How can I register a copyright with the U.S. Copyright Office? 2.7) What advantages are there to including a copyright notice on my work? 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. 2.10) [reserved.] 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 ... writings." 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 copies; 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 the work; 4) the performance right: the right to perform the copyrighted work publicly; 5) the display right: the right to display the copyrighted work publicly; 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 art. 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 protected. - 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 to others. 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 abandonment. 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). and, 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 information). 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 published. - 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 duration. 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 effect.) 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 2024. 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. 303. Whew! And to think I went into copyright law instead of tax to avoid the math. 2.5) What advantages are there to registering my work with the Copyright Office? 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. 412. "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 registration. 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, Package 115 - 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 work? 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." abbreviation. 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 categories. 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 permission." 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 use: - 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 news report; - 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 or reports; - Incidental and fortuitous reproduction in a newsreel or broadcast, of a work located in the scene of an event being reported. 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 <carol@dreamer.rain.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, general-market book; - Prose quotations of more than 50 words from a scholarly journal; - Quotations of more than 2 lines of poetry or lyrics; - Quotations of more than 1 sentence from a popular magazine or newspaper; - 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 educational purposes; (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 interpreted. (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 substantial"). 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. 2.10) [reserved.]