[library-media] Four Factors of Fair Use

Paula Zsiray paula.zsiray@cache.k12.ut.us
Mon, 20 Sep 2004 12:22:57 -0600


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Here is an excerpt from an article found on the "Find Law"
http://tinyurl.com/7ycxo web page.
=20
Paula Zsiray
UTLNK Library Media Mailing List Facilitator
=20
Library Media Teacher
Mountain Crest High School
255 S. 800 East
Hyrum, UT   84319
=20
voice:  435.245.6093, x310
fax:  435.245.3818
=20
=20

What is "fair use"?

There are certain exemptions to copyrights, such as for a teacher using =
a
lawfully-obtained copy in the classroom under certain circumstances, or =
for
performance of religious works during religious assembly, or for certain
nonprofit performances. Most of these exemptions are significantly
restricted.

"Fair use" is not an exemption to copyright law. The concept of "fair =
use"
is a defense, which presumes that an infringement has occurred. Not
surprisingly, the test of "fair use" isn't always easy to apply.

"Fair use" generally encompasses areas such as criticism, comment, news
reporting, or teaching. A use that falls into any of those categories
doesn't automatically qualify as "fair use." Instead, four factors must =
also
be considered:

1. The purpose and character of the use
2. The nature of the copyrighted work
3. The amount and substantiality of the
copyrighted work used
4. The effect on the potential market of the copyrighted work=20

The "purpose" reflects why you want to use the work. If your use is =
intended
for your own commercial gain, it is less likely to fall under the =
category
of fair use. Free speech, for example, doesn't necessarily protect all
parody from copyright infringement. When "Weird Al" Yankovic parodies a
popular song, he gets permission from and pays royalties to the original
artist.

The "nature" of the work itself includes whether it is published or
unpublished and whether it is creative or fact-based. Under this factor,
unpublished and creative works tend to get more protection. Even though
facts cannot be copyrighted, it is easy for authors to go beyond fair =
use by
copying the way those facts are presented.

How much you use, and which parts, reflect the "amount and =
substantiality"
factor of fair use. Normally, the less you use (such as a quote from a =
movie
in a review of that movie), the more likely the use falls under the =
category
of fair use. However, what was used counts as much as how much was used. =
If
you use the core of the work, even a small amount of copying may violate
fair use.

Finally, consider the effect of the use on the author's "potential =
market."
If you copied a work so that you didn't have to buy additional copies of =
the
original, or if you did so to avoid having to pay a license fee to the
author, it's unlikely to qualify as fair use.

There are rarely black-and-white answers when analyzing fair use. =
Consult
with an attorney before you make use of a copyrighted work. The only way =
to
have certainty is to ask permission.


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<BODY>
<DIV><SPAN class=3D953491818-20092004><FONT face=3D"Comic Sans MS">Here =
is an=20
excerpt from an article found&nbsp;on the&nbsp;"Find Law" =
</FONT></SPAN><A=20
href=3D"http://tinyurl.com/7ycxo">http://tinyurl.com/7ycxo</A><FONT=20
face=3D"Comic Sans MS">&nbsp;<SPAN class=3D953491818-20092004>web=20
page.</SPAN></FONT></DIV>
<DIV><FONT face=3D"Comic Sans MS"></FONT>&nbsp;</DIV>
<DIV><FONT face=3DArial size=3D2>Paula Zsiray</FONT></DIV>
<DIV>
<DIV align=3Dleft><FONT face=3DArial size=3D2>UTLNK Library Media =
Mailing List=20
Facilitator</FONT></DIV>
<DIV align=3Dleft><FONT face=3DArial size=3D2></FONT>&nbsp;</DIV>
<DIV align=3Dleft><FONT face=3DArial size=3D2>Library Media =
Teacher</FONT></DIV>
<DIV align=3Dleft><FONT face=3DArial size=3D2>Mountain Crest High =
School</FONT></DIV>
<DIV align=3Dleft><FONT face=3DArial size=3D2>255 S. 800 =
East</FONT></DIV>
<DIV align=3Dleft><FONT face=3DArial size=3D2>Hyrum, UT&nbsp;&nbsp; =
84319</FONT></DIV>
<DIV align=3Dleft><FONT face=3DArial size=3D2></FONT>&nbsp;</DIV>
<DIV align=3Dleft><FONT face=3DArial size=3D2>voice:&nbsp; 435.245.6093, =

x310</FONT></DIV>
<DIV align=3Dleft><FONT face=3DArial size=3D2>fax:&nbsp; =
435.245.3818</FONT></DIV>
<DIV align=3Dleft><FONT face=3DArial size=3D2></FONT>&nbsp;</DIV>
<DIV align=3Dleft><FONT face=3D"Comic Sans MS"></FONT>&nbsp;</DIV>
<DIV align=3Dleft>
<P><B>What is &#8220;fair use&#8221;?</P></B>
<P>There are certain exemptions to copyrights, such as for a teacher =
using a=20
lawfully-obtained copy in the classroom under certain circumstances, or =
for=20
performance of religious works during religious assembly, or for certain =

nonprofit performances. Most of these exemptions are significantly=20
restricted.</P>
<P>&#8220;Fair use&#8221; is not an exemption to copyright law. The =
concept of &#8220;fair use&#8221; is=20
a defense, which presumes that an infringement has occurred. Not =
surprisingly,=20
the test of &#8220;fair use&#8221; isn&#8217;t always easy to apply.</P>
<P>&#8220;Fair use&#8221; generally encompasses areas such as criticism, =
comment, news=20
reporting, or teaching. A use that falls into any of those categories =
doesn&#8217;t=20
automatically qualify as &#8220;fair use.&#8221; Instead, four factors =
must also be=20
considered:</P>
<P>1. The purpose and character of the use<BR>2. The nature of the =
copyrighted=20
work<BR>3. The amount and substantiality of the<BR>copyrighted work =
used<BR>4.=20
The effect on the potential market of the copyrighted work </P>
<P>The &#8220;purpose&#8221; reflects why you want to use the work. If =
your use is intended=20
for your own commercial gain, it is less likely to fall under the =
category of=20
fair use. Free speech, for example, doesn&#8217;t necessarily protect =
all parody from=20
copyright infringement. When &#8220;Weird Al&#8221; Yankovic parodies a =
popular song, he=20
gets permission from and pays royalties to the original artist.</P>
<P>The &#8220;nature&#8221; of the work itself includes whether it is =
published or=20
unpublished and whether it is creative or fact-based. Under this factor, =

unpublished and creative works tend to get more protection. Even though =
facts=20
cannot be copyrighted, it is easy for authors to go beyond fair use by =
copying=20
the way those facts are presented.</P>
<P>How much you use, and which parts, reflect the &#8220;amount and =
substantiality&#8221;=20
factor of fair use. Normally, the less you use (such as a quote from a =
movie in=20
a review of that movie), the more likely the use falls under the =
category of=20
fair use. However, what was used counts as much as how much was used. If =
you use=20
the core of the work, even a small amount of copying may violate fair =
use.</P>
<P>Finally, consider the effect of the use on the author&#8217;s =
&#8220;potential market.&#8221;=20
If you copied a work so that you didn&#8217;t have to buy additional =
copies of the=20
original, or if you did so to avoid having to pay a license fee to the =
author,=20
it&#8217;s unlikely to qualify as fair use.</P>
<P>There are rarely black-and-white answers when analyzing fair use. =
Consult=20
with an attorney before you make use of a copyrighted work. The only way =
to have=20
certainty is to ask permission.</P></DIV><FONT=20
face=3D"Comic Sans MS"></FONT></DIV></BODY></HTML>

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