Fair Use Interpretation & Guidelines: The Fair Use Doctrine II



This article is a continuation of an article called "How Much of Someone Else's Work May I Use Without Asking Permission", The End Sheet, Spring 1996, which discussed the statutory codification, judicial interpretation, and general parameters of the "fair use doctrine".

This column discusses specific fair use judicial decisions in an attempt to show how some courts have interpreted the use, without permission, of another's copyrighted work, and hopefully will help you evaluate whether a particular use of a copyrighted work will be protected by the fair use doctrine.

Any attempt to understand the basis for specific judicial decisions must take into consideration the fact that the fair use doctrine is not intended to be a rigid, fixed body of law, but is instead a flexible body of law that varies with the specific circumstances of a particular case. It is for this reason that fair use judicial decisions are difficult to predict and sometimes very difficult to reconcile with previous decisions.


How Much Can One Use of Literary Works?

Many authors and publishers have the perception that the law provides specific guidelines relating to the number of words one can use of a copied work. Although rumors persist as to word-count guidelines, it is safe to conclude that the law does not provide a specific word-count that will be designated as fair use of another's work. Some examples of the scope of such word-count variances are the following: (i) 300 words quoted in a magazine article from approximately 30,000 words in President Gerald Ford's manuscript of his memoirs was not fair use, (ii) 200 words quoted from the unpublished letters of J.D. Salinger in an unauthorized biography was deemed not to be fair use, (iii) the photocopying of entire scientific and medical journal articles was found in one instance not to be fair use (American Geophysical Union v. Texaco, Inc., 1994), and in another instance to be fair use (Williams & Wilkins Co. v. United States, 1975), and (iv) placing unpublished Church of Scientology materials in their entirety on an Internet bulletin board was found to be fair use.

One may ask, "Why are their no absolute rules?" Probably the simplest, and yet most unsatisfactory answer is that the specific circumstances of each case differ. The court when evaluating fair use analyzes four separate factors to determine whether the fair use defense applies in the specific case. These factors are the following:

(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; and

(4) the effect of the use upon the potential market for or value of the copyrighted work."

Because the court in analyzing fair use considers all of the above four factors -- no single factor is and of itself sufficient to prove fair use -- a brief review of two cases should be helpful in understanding how the court reached its decision on the fair use issue.


President Ford's Memoirs

President Ford contracted with Harper & Row to publish his memoirs. Harper & Row then contracted with Time magazine the exclusive right to publish, one week before the book would be shipped, a 7500 word excerpt from the book. The Nation magazine obtained a copy of the Ford manuscript several weeks before Time's publication of the article and published its own 2,250 word article that included quotes, phrases and facts from the manuscript. Following the publication of the Nation article, Time canceled publication of its article and did not pay remaining monies that were due Harper & Row. Harper & Row then proceeded to sued the Nation for copyright infringement.

This case eventually wound up in the Supreme Court where the Court found in favor of Harper & Row and against the Nation's argument of fair use. The Court's analysis of the four factors was as follows:

1. Purpose of Use - Although the Court agreed that news reporting was a favored purpose "the fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weight against a finding of fair use." The Court in determining this factor weighed against a finding of fair use emphasized the "Nation's stated objective of scooping the forthcoming book and Time article.

2. Nature of the Copyrighted Work - Despite the fact that the Court recognized a greater need to disseminate factual works than fictional works, the Court concluded, based upon the unpublished status of Ford's memoirs and the fact that it was up to the author to control publication, that this factor weighed against a finding of fair use.

3. Amount and Substantiality of the Portion Used - The amount of the Nation's use of Ford's memoirs was not very large; the District Court determined that only 300 words in the Nation's article were copyright protected. However, the District Court concluded that these 300 words were "qualitatively substantial, constituting the "heart of the book." The Supreme Court therefore determined that this factor weighed against a finding of fair use.

4. Market Effect - The Court stated that the market effect "is undoubtedly the most important element of fair use." In analyzing this factor the Court concluded that "[r]arely will a case of copyright infringement present such clear-cut evidence of damage", and that any inquiry into this factor must take into account any damage to the original work as well as to any "harm to the market for derivative works." Needless to say, the Court concluded that this factor weighed against a finding of fair use.

In summary, the Supreme Court concluded that all four factors weighed against finding a fair use defense for the Nation's publication of the article based on President Ford's memoirs.


Church of Scientology

The Religious Technology Center ("RTC") is a formal entity of the Church of Scientology founded by Ron L. Hubbard. RTC claims to hold an exclusive license to certain unpublished works of Hubbard which have restricted access to only certain members of the Church. F.A.C.T. Net is a nonprofit educational and charitable company run by former Church members. F.A.C.T. Net maintains a library and archive information on the Church dealing with the Church's controversial status as a religious tax exempt organization; much of this information is available on F.A.C.T. Net's bulletin board on the Internet. RTC sued F.A.C.T. Net for copyright infringement for placing unauthorized copies of unpublished Church materials on the Internet.

This case was brought in the federal District Court of Colorado where the court refused to grant a preliminary injunction that would have removed the F.A.C.T. Net materials from the Internet. In refusing to grant the injunction the court concluded that F.A.C.T. Net's use of the Church materials was fair use. The court's analysis of the four factors was as follows:

1. Purpose of Use - The court noted that the purpose and character of F.A.C.T. Net's use of the Church materials was not commercial in nature. Instead F.A.C.T. Net's use was nonprofit in that its publication of the Church materials was to advance an understanding of issues involving the Church that were subject to continuing public controversy. The RTC failed to show evidence that any follower of the Church would consider the Internet postings as a market substitute for the Church materials. The court concluded that this factor weighed in favor of fair use since the purposes of criticism, comment and research all fall within the fair use doctrine.

2. Nature of the Copyrighted Work - The court recognized that the Church materials were unpublished, but the court went on to differentiate this case from President Ford's unpublished work and the fact that it is up to the author to control publication, stating that the same concerns of the Court in Harper & Row did not apply in this situation.

3. Amount and Substantiality of the Portion Used - The court noted that it could not compare the material that was copied by F.A.C.T. Net and placed on the Internet with the Church's original materials because RTC failed to provide the court with the materials in their entirety. The court further stated that even if a work was copied in its entirety that such copying could still constitute fair use.

4. Market Effect - The court decided that even though the Church materials were unpublished that F.A.C.T. Net's use of the materials would not effect any future publication of the materials. The RTC also failed to demonstrate any potential financial loss to the Church. The court concluded that this factor weighed in favor of fair use.

In summary, the District Court of Colorado concluded that F.A.C.T. Net had made fair use of the Church materials; the use was non-commercial and the evidence presented by RTC suggested no financial harm, other than that possibly resulting from criticism, to the copyright owner.


Guidelines

One must remember there are no absolute rules when the issue involves how much one is permitted to take of another's copyrighted work and still be protected by the fair use doctrine.

1. Do not depend on word-count guidelines.

2. Commercial use of another's work is less likely to be considered fair use than uses that are educational or criticism.

3. Factual works receive less protection than fictional works.

4. If you are quoting another's work without permission, and are relying upon the fair use doctrine to protect your copying, make certain that you quote accurately, provide proper credit to the source of the copied work, and if possible add value to the quoted material by comparing, criticizing or commenting upon such material.

There is no certainty, when copying another copyrighted work without permission, that a court will interpret the specific circumstances as fair use. Ultimately, whether a court will determine a specific use to be fair use will be dependent upon the circumstances and the court's analysis of the four fair use factors enumerated in Section 107 of the Copyright Act.

This article is not legal advice. You should consult an attorney if you have legal questions that relate to specific publishing issues and projects.