mzemil Zemil's Bookmarks

A “fair use” is copying any protected material (texts, sounds, images, etc.) for a limited and “transformative” purpose, like criticizing, commenting, parodying, news reporting, teaching the copyrighted work. Under the US copyright laws, fair use “is not an infringement of copyright.” Judges typically consider four factors that are set forth in the Copyright Act. These factors are non-exclusive, so judges are permitted to consider other facts in addition to these. However, in the vast majority of cases, courts limit their analysis to these factors (you can read more detail about these factors at http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html. The Brennan Center's excellent public policy report entitled “Will Fair Use Survive?: Free Expression in the Age of Copyright Control” provides a analysis of how fair use has played out in numerous scenarios over recent years: http://www.fepproject.org/policyreports/WillFairUseSurvive.pdf):

• the purpose and character of your use (this is sometimes called the “transformative factor”);


• the nature of the copyrighted work (e.g., is the work highly creative fiction warranting broader protection, or is it highly factual warranting narrower protection?);


• the amount and substantiality of the portion taken, (as compared both to the underlying work and the work in which the copying is used); and


• the effect of the use upon the potential market (e.g., did the copyrighted work lose market share or potential market share?).

In addition, some commentators refer to a “fifth fair use factor” which hinges on good faith -- whether your conduct might be considered “morally offensive,” Judges and juries are human, and their decisions can be swayed by whether they think you are a "good or bad” actor (see http://bgbg.blogspot.com/2005/10/search-or-seizure.html).

• Example 1: A book group organized by a high school teacher podcasts its meeting discussing J.D. Salinger's Catcher In The Rye. The members discuss the book, read short portions of it aloud, and criticize and comment on the author's style, the storylines, and the like. The podcast is posted on the book group's blog site, which is hosted by the high school. The site includes no advertising and generates no revenue. Conclusion: This would likely be a fair use.

• Example 2: A podcaster uses the copyrighted music of pianist George Winston for the intros and outros of her podcast that is about yoga and meditation. The podcast has nothing to do with commenting or critiquing the music played. Conclusion: This is likely not a fair use.

• Example 3: A 10-minute podcast includes a group of music fans discussing a recent copyrighted article in Rolling Stone magazine about a new band. One fan reads 4 paragraphs of the 6-paragraph article and comments on its analysis of the band. Another fan plays a 1-minute segment of the band's copyrighted song, which is 2 minutes in length. The fan then discusses the music as it compares to other music in the genre. The fans post the podcast on a fan website where advertising is sold, and the fans receive revenue for their podcast. Conclusion: This commentary/criticism by the fans in response to the article and song suggests a “fair use”, but the commercial/profit aspect of the site where the podcast is being distributed raises concern, as does the amount of the article and song taken in comparison to their overall length. Any negative effect on Rolling Stone magazine's market or the band's market for its music could cut against the fair use argument, though the podcasters might argue that the podcast promotes the Rolling Stone magazine article and band's song, and that it is not a replacement for either (of course, this would likely be costly and difficult to prove in a trial setting). Given the flexible application of the fair use doctrine, and that the burden lies on the podcaster to prove fair use, podcasters in this situation could be found to infringe.