Fair use: A narrow, subjective, complicated safe haven for free speech

Attorney Miles Feldman on the ins and outs of fair use.

Questions of fair use continue to arise, with the most recent fair use judgment coming from a U.S. federal court in Nevada, which ruled that excerpting copyrighted materials — up to 10% of the original work in the case of a newspaper story — is fair use.

I reached out to Miles Feldman, co-chair of the litigation and intellectual property departments at the Los Angeles-based law firm of Raines Feldman LLP, for more on the topic of fair use. In the following interview, Feldman takes a look at factors courts consider, offers a few guidelines and best practices to follow, and highlights some fundamental problems with Creative Commons Licensing.

How is “fair use” defined and what is its legal purpose?

Miles Feldman: Basically, the fair use doctrine creates a narrow safe haven for authors to quote, comment on, or parody copyrighted material. It was built into our copyright laws to protect freedom of speech and our First Amendment rights.

Does the breadth of the fair use guidelines cause confusion?

Miles Feldman: There are four factors courts look at to determine if fair use applies:

  1. The nature of the work used
  2. The nature of the new work
  3. The amount of the original work used in the new work
  4. The effect on the market for the original work

These factors do involve some subjectivity. Uses that are more likely to be found to be fair are those that do not displace sales of the original work. For example, a parody or commentary of a book will not displace a sale of the original work. Where this gets much muddier is when authors create new works based on the original, claiming the new work is a parody of the original work. A notable example is the work “The Wind Done Gone,” by Alice Randall, which was a reworking of the well-known “Gone with the Wind,” by Margaret Mitchell, telling the story from the perspective of the slaves. “The Wind Done Gone” was held to be a fair use because it commented on the original and would not displace a purchase of the original. On the other hand, creating a sequel to a copyrighted book would not be fair use because one of the rights that an author has is to create derivative works based on their works of authorship.

What are some best practices people should follow to stay within the guidelines?

Miles Feldman: First, quote just enough needed to comment. Because the amount of earlier work that is used is a factor in the analysis, the less of that work that is incorporated into the subsequent work, the better. Further, authors should ask themselves if the use will have an impact on the market for the earlier work by displacing a sale. Of course, the safest course of action, but not really practical, is always to obtain a license before using any material that is protected by copyright.

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What are the most common fair use abuses?

Miles Feldman: The biggest would be using more of the copyrighted work than was necessary. For example, if you are going to report on the death of Michael Jackson, some footage of the star may be included in the story and would likely be considered fair use. However, if you broadcast the entire “Thriller” video in memoriam, that would likely be deemed infringement and the fair use defense would not apply.

What kinds of content aren’t protected by copyright or subject to fair use?

Miles Feldman: Content that is older than 200 years. Such works are now likely in the public domain. Moreover, ideas are not protected by copyright. Rather, the expression of an idea is protected. Therefore, anything that is merely idea and not expression is not subject to fair use, but is free to be used nonetheless. In the same vein, stock literary devices that are common in most books are not protected by copyright. In addition, titles to literary works are not copyrightable.

How would someone know if something is in the public domain or not?

Miles Feldman: The first step is to determine when the work was initially created and when it was first published. If the work was published after 1923, it is very difficult to determine whether it is in the public domain or whether it is still protected by copyright. Recently, the Supreme Court made it even more difficult to determine whether works are in the public domain when it held that the copyrights on foreign works that had fallen into the public domain could be restored.

However, there are some good research tools to determine the status of works. For motion pictures, a good place to start is with a search of the United States Copyright Office database. For music compositions and sound recordings, ASCAP and BMI maintain records of the music publisher for a given work. The music publisher will list the work’s original author and date of publication. Once an author who wishes to use the work determines when the work was originally published, he or she can determine whether the work is still protected. Finally, the Library of Congress can be a good research tool for determining when works were originally published.

What’s your take on Creative Commons licensing?

Miles Feldman: Creative Commons was founded in 2001 as a clearinghouse for copyright licensing. Although widely regarded as a valiant effort, there are many critiques of the Creative Commons platform. First, there are many variations in the types of licenses and permissions granted by the website. Second, if an author chooses to allow his or her work to be licensed through Creative Commons and then realizes that the work has gained popularity and could be more profitable through traditional licensing channels, the author may remove it from Creative Commons, leaving those who relied on its licenses uncertain as to their rights. No court has ruled on whether an author who uses Creative Commons can reclaim full bundle of rights after others have licensed the work.

This interview was edited and condensed.

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