copyright protection and defense, commentary on fair use


	prairiepictures®

commentary on "fair use"
by Martin Lisius

The concept of "fair use" is the biggest contradiction of copyright law.

The US Copyright Office states: "Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works."

And the US Constitution, Article 1, Section 8, states that Congress shall have the power..."To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Copyright law contradicts with: "One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright act (title 17, U.S. Code). One of the more important limitations is the doctrine of 'fair use.'"

So, copyright law gives copyright owners substantial protection, and then takes some of it away with the so-called "fair use" doctrine. The good news is that it is very difficult for a pirating party to escape the penalties of infringement by claiming "fair use."

In some cases, "fair use" is a claim used by pirates attempting to "get off the hook." They will abuse the law and hide behind their claim as long as they can. But ultimately, they will have to prove their right to "fair use" in court.

Some pirates may claim they are protected under "fair use" because their use of the copyrighted property was "news." But, this is often just another abuse of the law. Users of copyrighted material must acquire the permission of the copyright owner prior to use. Otherwise, it is an infringement in virtually every instance. The claim of "fair use" by the pirate is very risky, as it is a ship with many holes passing through turbulent waters.

A copyright owner should not give up the moment an infringer claims "fair use." Doing so is exactly what the infringer is hoping for. Instead, the copyright owner should hire an attorney that understands not only copyright law, but the weaknesses of the "fair use" claim.

One example of abuse of the "fair use" law involved a TV network that employed copyrighted footage into a story marking the five year anniversary of a deadly tornado. The copyright owner discovered the infringement and asked to be compensated for the use. The network claimed that they had no obligation to pay the owner because (they said) their story was "news," and, therefore, was "fair use." In actuality, it was not news since "news" is "information about something recent or previously unknown." The anniversary itself may have been news, but the footage was not of the anniversary. It was footage of the tornado that occurred five years prior, an event not "recent" or "previously unknown." Even if their "news" claim was valid, and it was not, then they would have to prove why their use of the footage was an acceptable "fair use." The "news" claim alone will not do that. They were hurdles away from legally proving protection under "fair use." The fact that they used the owner's footage without permission was bad enough. But, later claiming "fair use" was despicable, and indicated a blatant disrespect for the owner and for the law. But, that's what a pirate does best, right?

Regarding "fair use," the Copyright Office states: "The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission. When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of "fair use" would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered "fair" nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney."

Read more about "fair use."

Information on this page should not be considered legal advice. To locate an intellectual property attorney, contact your local bar association.