Fair Use at Yale

This page seeks to educate about Fair Use and Yale’s policies on the subject.

As outlined in the Copyright Act of 1976, 17 U.S.C. § 107, Fair Use is defined as the following:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

In more laymen terms, “fair use” is basically a defense used to justify the unauthorized use of copyrighted material.  By analyzing the work in question using the 4 factors listed above, it is the courts decision to determine whether or not the work is infringing or not.  the fact that there is no concrete standard for fair use brings up a variety of issues that will be discussed later ,however for now, we’ll take a deeper look at the four factors.

(1) Purpose and Character

Because of the weight put on this factor, it has unofficially been dubbed the “soul of fair use”.  This factor seeks to question whether or not the work in question is furthering the purpose of copyright: to stimulate creativity for the enrichment of the general public. Officials use this factor to determine whether the work transforms the original copyrighted material into something new, and is thus original(transformative) or if it merely builds upon the existing copyrighted work in a way that mimics the original pathway of the copyrighted works original purpose (derivative). To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new.  Two interesting cases demonstrate the contrast between transformation and derivation in fair use.

When Tom Forsythe appropriated Barbie dolls for his photography project “Food Chain Barbie,” Mattel lost its claims of copyright and trademark infringement against him because his work effectively parodies Barbie and the values she represents.  Though not visually, Forsythe ‘transformed” the original values Barbie, which qualified him for protection under fair use.  However,  when Jeff Koons tried to justify his use of Art Rogers’ photograph “Puppies” in his sculpture “String of Puppies” with the same parody defense, he lost because his work not only was not presented as a parody of Rogers’ photograph in particular, but of society at large, but also did not serve to transform Rogers photo, he merely followed the path of the original work in a different medium.

(2) Nature of the Work

Although the Supreme Court has ruled that the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analysis consider certain aspects of the work to be relevant.  The main issue in this factor is determining whether the copyrighted work should have been copyrightable in the first place.  Under certain instances, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations.

The Zapruder film of the assassination of President Kennedy, for example, was purchased and copyrighted by Time magazine. Yet their copyright was not upheld, in the name of the public interest, when they tried to enjoin the reproduction of stills from the film in a history book on the subject in Time Inc. v. Bernard Geis Associates.

(3) Amount and substantiality

The third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work.  Although actual numbers is not the heart of the issue.  The weight of the used copyrighted material is of a greater importance, meaning if the sentence from a book is the thesis sentence then it can be considered the most substantial piece of the book, and thus using it consistences infringement not protected under fair use.

But in general, the less that is used in relation to the whole, e.g., a few sentences of a text for a book review, the more likely that the sample will be considered fair use. Yet see Sony Corp. v. Universal City Studios for a case in which substantial copying—entire programs for private viewing—was upheld as fair use. Likewise, see Kelly v. Arriba Soft Corporation, where the Ninth Circuit held that copying an entire photo to use as a thumbnail in online search results did not weigh against fair use, “if the secondary user only copies as much as is necessary for his or her intended use.” Conversely, in Harper & Row, Publishers, Inc. v. Nation Enters,^[11] the use of fewer than 400 words from President Ford‘s memoir by a political opinion magazine was interpreted as infringement because those few words represented “the heart of the book” and were, as such, substantial.

(4) Effect on the Value

The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner’s ability to profit from his or her original work.  In evaluating the fourth factor, courts often consider two kinds of harm to the potential market of the original work: First, courts consider whether the use in question acts as a direct market substitute for the original work. In the judgement of the Supreme Court in Acuff-Rose Music they decisively stated that, “when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur.” In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner’s official trailers. Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licensing market. This consideration has weighed against commercial copy shops that make copies of articles in course-pack for college students, when a market already existed for the licensing of course-pack copies.  Courts also recognize that certain kinds of market harm do not oppose fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism.

Common Misconceptions

• Any use that seems fair is fair use
• Fair use interpretations, once made, are static forever
• If it’s not fair use, it’s copyright infringement
• It’s copyrighted, so it can’t be fair use
• Acknowledgment of the source makes a use fair
• Noncommercial use is invariably fair
• Strict adherence to fair use protects you from being sued
• The lack of a copyright notice means the work is public domain
• It’s okay to quote up to 300 words
• You can deny fair use by including a disclaimer
• If you’re copying an entire work, it’s not fair use
• If you’re selling for profit, it’s not fair use

At the University Level

“Fair use” amongst most college students mostly invokes conversation about its applications to music and videos. However, interesting enough, “fair use” at the university level may have its biggest effects and applications not to the students but to the professors.

Perusing around the web, trying to in investigate Yale’s policies regarding fair use, all i was ably to find were policies which explained fair use and how it applies in the classroom. Yale’s main concern is not about informing the students, but more about the professors.  The policies were outlined according to the “Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions”, which was an unofficial guide for educational institutions that outlined the minimum standards of fair use.   Although specifically stated that the guidelines are not backed by law, they are understood to be reasonable assumptions of the standards of fair use.

Since the fair use is such a fluid and subjective concept, appealing to case-by-case analysis to determine if protection is granted, it was the most interesting thing to find oddly specific criteria in these guidelines .  It outlines that for classroom distributed materials a copying is allowed if it accords to the following guidelines:

Along with the specific word counts, the guideline also gives a limit on the number of instances per term that material may be copied and even puts a limit on the number of pieces of material that a professor may copy from a given author.  As mentioned above, this “Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions” is not backed by law, and therefore does not concretely constitute fair use.  Reading through the guidelines, I was hard pressed to find a guideline that was not broken by one of my professors.  Although I found no instances of copyright holders filing suit against Yale University professors, it would be interesting to find a case where these guidelines were put to the test.

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