Copyrights & Fair Use

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Hakim

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From time to time the issue comes up as to what articles, photos and content from other sites can legally be posted here on TBN, without violating someone's copyright.

Copyright law is complex and becomes moreso by the day, as the courts make new laws and refine old ones, to interface with all the "new" modes of sharing data that occur on the Internet.

Below is an article by Mark Litwak, an attorney and expert on copyright and fair use on the Internet.

As a general statement, it is usually permitted to copy a brief amount (around 100 words or less) of content, so long as you identify the source.

Of course much more information is available at the US Copyright Office Home Page http://www.copyright.gov/

Stanford University Library, especially good on fair use and duplication issues:
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html

PubLaw's web site is phenomenal, as it is specifically geared to online law and IP issues, really excellent: http://www.publaw.com

FYI, I have no commercial interest in any of these sites, and none of the links are for paid products or affiliate programs. I am not a lawyer and do not play one on television.

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"What Is Fair Use?
Legal Q & A November 2005

By Mark Litwak, Attorney At Law

This article is used by permission of Mark Litwak, Esq. and is taken from www.marklitwak.com.

Many writers and filmmakers are confused about the fair use doctrine and whether they need permission to borrow from copyrighted works.

If the fair use doctrine applies, no license is needed to borrow from a copyrighted work. It gives the public a limited right to draw upon copyrighted works to produce separate works of authorship. Such uses include fair comment and criticism, parody, news reporting, teaching, scholarship and research...

In determining whether the use of a copyrighted work is fair use, courts weigh four factors: 1) the purpose and character of the work; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion borrowed in relation to copyrighted work as a whole; and 4) the potential adverse effect on the market for, and value of, the copyrighted work.

The purpose and character of the work: A non-profit educational use is more likely to be considered a fair use than a commercial use. A commercial use is one that earns a profit.

The nature of the copyrighted work: There is greater public interest in allowing borrowing for scientific, biographical and historical works than for entertainment works.

The amount and substantiality of the portion borrowed in relation to copyrighted work as a whole: Taking one sentence from a five hundred page book is more likely to be considered a fair use than taking a sentence from a ten line poem.

The potential adverse effect on the market for, and value of, the copyrighted work: If borrowing from the copyrighted work harms the market for it, the use is less likely to be considered a fair use. Borrowing a sentence from a novel and incorporating it in another, completely different kind of work, such as a scholarly work, is unlikely to have any effect on sales of the novel. Likewise, borrowing from a book that is out of print is not likely to have an adverse impact on its sales.

In applying these factors to a specific factual situation, it can often be difficult to predict whether a use will fall within the doctrine. Generally speaking, a greater amount of material may be borrowed from non-fiction works than from fictional works. Clearly, a writer can borrow historical facts from a previous work without infringing upon the first author’s copyright, because of both the fair use doctrine and because historical facts are not copyrightable. Moreover, since factual works, unlike works of fiction, may be capable of being expressed in relatively few ways, only verbatim reproduction or close paraphrasing will be an infringement.

Writers should be more cautious in borrowing from novels and other fictional works. In one case, the author of the book “Welcome to Twin Peaks: A Complete Guide to Who’s Who and what’s What,” was found to have infringed the television series “Twin Peaks.” The book contained detailed plot summaries and extensive direct quotations of at least eighty-nine lines of dialog.

One encounters a lot of grey areas in applying the fair use doctrine. It is safe to say that a schoolteacher will be protected if she photocopies a Newsweek article and distributes it to her class on one occasion. If the schoolteacher, however, photocopies an entire textbook and distributes it to her students in order to save them the expense of purchasing their own texts, this would not be a fair use. But there are many factual situations that lie between these two extremes; and in those cases it can be difficult to predict whether the fair use doctrine will be a good defense.

Regardless of whether the fair use doctrine may apply, it is always preferable to have a release than risk litigation and incur substantial legal fees to have a court determine whether or not you are within your rights...

Mark Litwak is a veteran entertainment attorney based in Beverly Hills, California. He is the author of six books and the creator of the Entertainment Law Resources web site: www.marklitwak.com.
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