For fair use of copyrighted works on Wikipedia, see Wikipedia:Fair use.

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Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. Intellectual property ( IP) is a legal field that refers to creations of the mind such as musical literary and artistic works inventions and symbols names Copyright is a legal concept enacted by Governments, giving the creator of an original work of authorship Exclusive rights to control its distribution usually for A patent is a set of Exclusive rights granted by a State to an inventor or his assignee for a fixed period of time in exchange for a disclosure of an A trademark or trade mark, represented by the symbols ™ and ®, or mark is a distinctive sign or indicator used by an individual Industrial design rights are Intellectual property rights that protect the visual design of objects that are not purely utilitarian A utility model is an Intellectual property right to protect Inventions This right is available in a number of national Legislations such as Argentina A geographical indication (GI is a name or sign used on certain products which corresponds to a specific geographical location or origin (eg A trade secret is a Formula, practice, Process, Design, instrument, Pattern, or compilation of Information which Related rights is a term in Copyright law used in opposition to the term " Authors' rights " A trade name, also known as a trading name or a business name, is the name which a Business trades under for commercial purposes although its registered In Computer networking, a domain name is a name given to a collection of network devices that belong to a domain which is an administrative space managed according Sui generis (English pronunciation ( IPA) /ˌsuːiˈdʒɛnərɪs/ roughly "SOO-ee JEN-a-ris" Latin pronunciation /ˌsuːiˈgeneris/ is a Neo-Latin In European Union law, a database right is a legal right introduced in 1996. A mask work is a two or three-dimensional layout or topography of an Integrated circuit (IC or "chip" i Plant breeders' rights (PBR also known as plant variety rights (PVR are Intellectual property rights granted to the breeder of a new variety In European Union member countries a supplementary protection certificate (SPC is a Sui generis, Patent -like Intellectual property Indigenous intellectual property is an umbrella legal term used in national and international forums to identify Indigenous peoples ' special rights to claim (from within Critics of the term " Intellectual property " argue that the increased use of this terminology coincided with a more general shift away from thinking about things like copyright United States copyright law governs the legally enforceable rights of creative and artistic works in the United States. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. A balancing test is any judicial test in which the Jurists weigh the importance of multiple factors in a legal case It is based on free speech rights provided by the First Amendment to the United States Constitution. Freedom of speech is the freedom to speak freely without Censorship or Limitation. The First Amendment to the United States Constitution is part of the United States Bill of Rights that expressly prohibits the United States Congress The term "fair use" is unique to the United States; a similar principle, fair dealing, exists in some other common law jurisdictions. Fair dealing is a Doctrine of Limitations and exceptions to copyright which is found in many of the Common law jurisdictions of the Commonwealth of Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive Civil law jurisdictions have other limitations and exceptions to copyright. Civil law or Romano-Germanic law or Continental law is the predominant system of law in the world. The expression " limitations and exceptions to copyright " refers to situations in which the Exclusive rights granted to authors or their assignees under Copyright

United States trademark law also incorporates a "fair use" defense, which also stems from the First Amendment of the U.S. constitution. Trademarks were traditionally protected in the United States only under State Common law, growing out of the Tort of Unfair competition. The First Amendment to the United States Constitution is part of the United States Bill of Rights that expressly prohibits the United States Congress The Constitution of the United States of America is the supreme Law of the United States.

Contents 1 Fair use under United States law 1.1 Purpose and character 1.2 Nature of the copied work 1.3 Amount and substantiality 1.4 Effect upon work's value 1.5 Fair use and professional communities 2 Practical effect of fair use defense 3 Fair use as a defense 4 The economic benefit of fair use 5 Fair use and parody 6 Fair use on the Internet 7 Common misunderstandings 8 Influence 9 Fair use in Israel 10 Fair use in South Korea 11 International situation 12 See also 13 References 14 External links and sources

Fair use under United States law

The legal concept of "Test copyright" was first ratified by the Kingdom of Great Britain's Statute of Anne of 1709. The Statute of Anne ( Short title Copyright Act 1709 8 Anne c Year 1709 ( MDCCIX) was a Common year starting on Tuesday (link will display the full calendar of the Gregorian calendar (or a Common year As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgment," which later became "fair use," that recognized the utility of such actions. The doctrine only existed in the U. S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. § 107, reprinted here:

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Notwithstanding the provisions of sections § 106 and § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive History and purpose Before the 1976 Act the last major revision to statutory copyright law in the United States occurred in 1909 Title 17 of the United States Code is the title of the United States Code that outlines United States copyright law. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. [1]

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The four factors of analysis for fair use set forth above derive from the classic opinion of Joseph Story in Folsom v. Joseph Story ( September 18, 1779 &ndash September 10, 1845) was an American Lawyer and Jurist who served on Marsh, 9 F.Cas. 342 (1841), in which the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington in order to produce a separate two-volume work of his own. Case citation is the system used in many countries to identify the decisions in past Court cases either in special series of books called reporters For the game see 1841 (board game. Year 1841 ( MDCCCXLI) was a Common year starting on Friday (link George Washington (February 22 1732 December 14 1799 served as the first President of the United States of America (1789&ndash1797 and led the The court rejected the defendant's fair use defense with the following explanation:

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[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy… In short, we must often… look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work. 'Copyright infringement' (or copyright violation) is the unauthorized use of material that is covered by Copyright law in a manner that violates

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Once these factors were codified as guidelines in 17 U.S.C. § 107, they were not rendered exclusive. Title 17 of the United States Code is the title of the United States Code that outlines United States copyright law. The section was intended by Congress to restate, but not replace, the prior judge-made law. Courts are still entitled to consider other factors as well.

Fair use tempers copyright's exclusive rights to serve the purpose of copyright law, which the U.S. Constitution defines as the promotion of "the Progress of Science and useful Arts" (Art. I, § 8, cl. 8). The Constitution of the United States of America is the supreme Law of the United States. Article I Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, the Copyright and Patent Clause (or Patent This principle applies particularly well to the case of criticism and also sheds light on various other limitations on copyright's exclusive rights, particularly the scenes à faire doctrine.

Purpose and character

The first factor is about whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for reasons of personal profit. To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative. In United States copyright law, transformation is a possible justification that use of a copyrighted work may qualify as Fair use, i In Copyright law, a derivative work is an expressive creation that includes major basic copyrighted aspects of an original previously created first work

When Tom Forsythe appropriated Barbie dolls for his photography project "Food Chain Barbie," Mattel lost its claims of copyright and trademark infringement against him because his work effectively parodies Barbie and the values she represents. Barbie is a best-selling fashion Doll launched in 1959 The doll is produced by Mattel Inc Mattel Inc ( is the world's largest Toy importing company based on revenue A parody (ˈpɛɹədiː US, [ˈpaɹədiː] UK) in contemporary usage is a work created to mock comment on or poke fun at an original work its subject ^[2] But when Jeff Koons tried to justify his appropriation of Art Rogers' photograph "Puppies" in his sculpture "String of Puppies" with the same parody defense, he lost because his work was not presented as a parody of Rogers' photograph in particular, but of society at large, which was deemed insufficiently justificatory. Jeff Koons (born January 21 1955) is an American artist whose work incorporates Kitsch imagery using painting sculpture and other forms ^[3]

However, since this case, courts have begun to emphasize the first fair use factor—assessing whether the alleged infringement has transformative use as described by the Hon. Judge Pierre N. Leval. Pierre Nelson Leval is a Judge on the United States Court of Appeals for the Second Circuit. ^[4] More recently, Koons was involved in a similar case with commercial photographer Andrea Blanch,^[5] regarding his use of her photograph for a painting, whereby he appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. In this case, Koons won; the case sets a favorable precedent for appropriation art where the use is deemed transformative.

The subfactor mentioned in the legislation above, "whether such use is of a commercial nature or is for nonprofit educational purposes," has recently been deemphasized in some Circuits "since many, if not most, secondary uses seek at least some measure of commercial gain from their use. "^[6] More important is whether the use fulfills any of the "preamble purposes" also mentioned in the legislation above, as these have been interpreted as paradigmatically "transformative. " Although Judge Pierre Leval has distinguished the first factor as "the soul of fair use," it alone is not determinative. For example, not every educational usage is fair. ^[7]

Nature of the copied work

Although the Supreme Court of the United States has ruled that the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional. The Supreme Court of the United States is the highest judicial body in the United States and leads the federal judiciary.

To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright—only their particular expression or fixation merits such protection. The idea-expression divide or idea-expression dichotomy is a concept which explains the appropriate function of Copyright laws which are generally designed to On the other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The Zapruder film of the assassination of President Kennedy, for example, was purchased and copyrighted by Time magazine. The Zapruder film is a silent 8 mm color home movie of the presidential motorcade of John F The assassination of John F Kennedy, the thirty-fifth President of the United States, took place on Friday November 22 1963 in Dallas Texas Yet their copyright was not upheld, in the name of the public interest, when they tried to enjoin the reproduction of stills from the film in a history book on the subject in Time Inc. v. Bernard Geis Associates. ^[8]

Following the decisions of the Second Circuit in Salinger v. Random House, Inc. ^[9] and in New Era Publications Int'l v. Henry Holt & Co. ,^[10] whether the copied work has been previously published suddenly trumped all other considerations because of, in the words of one commentator, "the original author's interest in controlling the circumstances of the first public revelation of his work, and his right, if he so chooses, not to publish at all. " Yet some view this importation of certain aspects of France's droit moral d'artiste (moral rights of the artist) into American copyright law as "bizarre and contradictory" because it sometimes grants greater protection to works that were created for private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially conceived to protect. This is not to claim that unpublished works, or, more specifically, works not intended for publication, do not deserve legal protection, but that any such protection should come from laws about privacy, rather than laws about copyright. The statutory fair use provision was amended in response to these concerns by adding a final sentence: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. "

Amount and substantiality

The third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work. In general, the less that is used in relation to the whole, e. g. , a few sentences of a text for a book review, the more likely that the sample will be considered fair use. Yet see Sony Corp. v. Universal City Studios for a case in which substantial copying—entire programs for private viewing—was upheld as fair use. Sony Corp of America v Universal City Studios Inc, 464 US 417 (1984 also known as the " Betamax case " was a decision by the Supreme Likewise, see Kelly v. Arriba Soft Corporation,where the Ninth Circuit held that copying an entire photo to use as a thumbnail in online search results did not weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use. Kelly v Arriba Soft Corporation (280 F3d 934 (CA9 2002 withdrawn, re-filed at 336 F The US Court of Appeals for the Ninth Circuit is a federal court with Appellate jurisdiction over the district courts in the following districts " Conversely, in Harper & Row, Publishers, Inc. v. Nation Enters,^[11] the use of less than 400 words from President Ford's memoir by a political opinion magazine was interpreted as infringement because those few words represented "the heart of the book" and were, as such, substantial. Harper & Row v Nation Enterprises, 471 US 539 ( 1985) was a United States Supreme Court decision that determined that Fair use Gerald Rudolph Ford Jr (July 14 1913 December 26 2006 was the thirty-eighth President of the United States, serving from 1974 to 1977 and the fortieth Vice President

Before 1991, sampling in certain genres of music was accepted practice and such copyright considerations as these were viewed as largely irrelevant. Year 1991 ( MCMXCI) was a Common year starting on Tuesday (link will display full calendar of the Gregorian Calendar. In Music, sampling is the act of taking a portion or sample, of one Sound recording and reusing it as an instrument or element of a new recording The strict decision against rapper Biz Markie's appropriation of a Gilbert O'Sullivan song in the case Grand Upright Music, Ltd. v. Warner Bros. Records, Inc.^[12] changed practices and opinions overnight. Hip hop music, also referred to as rap music, is a Music genre typically consisting of a rhythmic vocal style called rap which is accompanied with Marcel Theo Hall (born April 8 1964 in Harlem New York) better known by his Stage name Biz Markie, is a Rapper, DJ, and Comedian Raymond Edward O'Sullivan (born 1 December 1946, Waterford, County Waterford, Ireland) known professionally as Gilbert O'Sullivan Samples now had to be licensed, as long as they rose "to a level of legally cognizable appropriation. "^[13] In other words, de minimis sampling was still considered fair and free because, traditionally, "the law does not care about trifles. De minimis is a Latin expression meaning about minimal things, normally in the phrases de minimis non curat Praetor or de minimis " The recent Sixth Circuit Court decision in the appeal to Bridgeport Music has reversed this standing, eliminating the de minimis defense for samples of recorded music, but stating that the decision did not apply to fair use. Bridgeport Music Inc v Dimension Films, 410 F3d 792 (6th Cir 2005 is a court case that has proved important in defining American copyright law for recorded music

Effect upon work's value

The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. Commercialization is the process of introducing a new product into the market See Sony Corp. v. Universal City Studios,^[14] where the copyright owner, Universal, failed to provide any empirical evidence that the use of Betamax had either reduced their viewership or negatively impacted their business. Sony Corp of America v Universal City Studios Inc, 464 US 417 (1984 also known as the " Betamax case " was a decision by the Supreme Universal Studios (sometimes called Universal Pictures or Universal City Studios) a subsidiary of NBC Universal, is a major Global American ---- Betamax is a home Videocassette tape recording format developed by Sony, and released on May 10, 1975. In the aforementioned Nation case regarding President Ford's memoirs, the Supreme Court labeled this factor "the single most important element of fair use" and it has indeed enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in Campbell v. Acuff-Rose Music, Inc.^[15] that "all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation. Campbell v Acuff-Rose Music, 510 US 569 ( 1994) was a United States Supreme Court Copyright law case that stands for the proposition

In evaluating the fourth factor, courts often consider two kinds of harm to the potential market of the original work: First, courts consider whether the use in question acts as a direct market substitute for the original work. The direct market is the dominant distribution and retail network for North American Comic books. In the judgement of the Supreme Court in Acuff-Rose Music they decisively stated that, "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur. " In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner's official trailers. ^[16] Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licensing market. This consideration has weighed against commercial copy shops that make copies of articles in course-pack for college students, when a market already existed for the licensing of course-pack copies. The verb license or grant license means to give permission The noun license is the document demonstrating that permission ^[17]

Courts recognize that certain kinds of market harm do not oppose fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism.

Fair use and professional communities

Courts when deciding fair use cases, in addition to looking at context, amount and value of the use, also look to the standards and practices of the professional communities where the case comes from.

Documentary filmmakers organized and created the Documentary Filmmakers' Statement of Best Practices in Fair Use, which has had a dramatic effect on fair use practice in documentary film. Since the release of the Statement in 2005, PBS, ITVS and IFC use it. Furthermore, four out of seven of the national errors and omissions insurers now issue fair use coverage routinely. Several documentary films have also used it, allowing both theatrical and television releases. Other professional communities are beginning to plan their own best practices standards in fair use as well.

Practical effect of fair use defense

The practical effect of this law and the court decisions following it is that it is usually possible to quote from a copyrighted work in order to criticize or comment upon it, teach students about it, and possibly for other uses. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though he may sell his review commercially. But a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

Free Republic, LLC, owner of the political website freerepublic. Free Republic is a moderated Internet forum, activist and chat site for self-described conservatives and nationalists, primarily within the United A limited liability company (abbreviated LLC or LLC) in the law of the vast majority of the United States is a legal form of business Company com, was found liable for copyright infringement in L.A. Times v. Free Republic for reproducing and archiving full-text versions of plaintiffs' news articles even though the judge found the website minimally commercial. LA Times v Free Republic is a 1998 United States district court copyright law case She held that "while defendants' do not necessarily 'exploit' the articles for commercial gain, their posting to the Free Republic site allows defendants and other visitors to avoid paying the 'customary price' charged for the works. "

The April 2000 opinion ruled concerning the four factors of fair use that 1) "defendants' use of plaintiffs' articles is minimally, if at all, transformative," 2) the factual content of the articles copied "weighs in favor of finding of fair use of the news articles by defendants in this case," though it didn't "provide strong support" 3) concerning the amount and substantiality prong, "the wholesale copying of plaintiffs' articles weighs against the finding of fair use," and 4) the plaintiffs showed that they were trying to exploit the market for viewing their articles online and defendants didn't rebut their showing by proving an absence of usurpation harm to plaintiffs. Ultimately the court found "that the defendants may not assert a fair use defense to plaintiffs' copyright infringement claim. "

Fair use as a defense

The Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc.. The Supreme Court of the United States is the highest judicial body in the United States and leads the federal judiciary. An affirmative defense is a category of defense used in Litigation between private parties in Common law Jurisdictions, or more familiarly Campbell v Acuff-Rose Music, 510 US 569 ( 1994) was a United States Supreme Court Copyright law case that stands for the proposition ^[15] This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that his use was "fair" and not an infringement. In law a lawsuit is a civil action brought before a Court in which the party commencing the action the Plaintiff, seeks a legal or equitable remedy Burden of proof (onus probandi is the obligation to prove Allegations which are presented in a Legal action. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie" case of copyright infringement. Prima facie is a Latin expression meaning "on its first appearance" or "by first instance" If the work was not copyrightable, the term had expired, or the defendant's work borrowed only a small amount, for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense. De minimis is a Latin expression meaning about minimal things, normally in the phrases de minimis non curat Praetor or de minimis

Because of the defendant's burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense. This type of frivolous lawsuit is part of a much larger problem in First Amendment law; see Strategic lawsuit against public participation. A Strategic Lawsuit Against Public Participation (" SLAPP " is a Lawsuit or a threat of lawsuit that is intended to intimidate and silence critics by burdening

Because paying a royalty fee may be much less expensive than having a potential copyright suit threaten the publication of a completed work in which a publisher has invested significant resources, many authors may seek a license even for uses that copyright law ostensibly permits without liability.

The frequent argument over whether fair use is a "right" or a "defense"^[18] is generated by confusion over the use of the term "affirmative defense. A right is a legal or moral Entitlement or Permission. Rights are of vital importance in theories of Justice and deontological ethics " An affirmative defense is simply a term of art from litigation reflecting the timing in which the defense is raised. Technical terminology is the specialized Vocabulary of a field It does not distinguish between "rights" and "defenses," and so it does not characterize the substance of the defendant's actions as "not a right but a defense. " The First Amendment, for instance, is generally raised as an affirmative defense in litigation, but is clearly a "right. " Similarly, while fair use is characterized as a defense in terms of the litigation posture, Section 107 defines fair use as a "limitation" on copyright law and states clearly that "the fair use of a copyrighted work … is not an infringement of copyright. "^[19]

In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in the 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation ("EFF"), the American Civil Liberties Union, the National Coalition Against Censorship, the American Library Association, numerous clinical programs at law schools, and others. The Electronic Frontier Foundation ( EFF) is an international non-profit advocacy and legal organization based in the United States with the stated purpose of being dedicated The American Civil Liberties Union ( ACLU) consists of two separate Non-profit organizations the ACLU Foundation a 501(c(3 organization which focuses The National Coalition Against Censorship (NCAC founded in 1974, is an alliance of 50 national non-profit organizations including literary artistic religious educational The American Library Association ( ALA) is a group based in the United States that promotes libraries and library education internationally The "Chilling Effects" archive was established in 2002 as a coalition of several law school clinics and the EFF to document the use of cease and desist letters. A cease and desist (also called C & D) is an order or request to halt an activity or else face legal action Most recently, in 2006, Stanford University began an initiative called "The Fair Use Project" (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations. Leland Stanford Junior University, commonly known as Stanford University or simply Stanford, is a private Research university located in

The economic benefit of fair use

A balanced copyright law provides an economic benefit to many high tech businesses such as search engines and software developers and Fair Use is also crucial to non-technology industries such as insurance, legal services, and newspaper publishers. ^[20] On September 12, 2007, the Computer and Communications Industry Association (CCIA),^[20] a group representing companies including Google Inc. Google Inc is an American public corporation, earning revenue from advertising related to its Internet search, e-mail, online , Microsoft Inc. Microsoft Corporation is an American multinational Computer technology Corporation, which rose to dominate the Home computer ,^[21] Oracle Corporation, Sun Microsystems, Yahoo^[22] and other high tech companies, released a study that found that Fair Use exceptions to US copyright laws were responsible for more than $4,500 Billion dollars in annual revenue for the United States economy representing one-sixth of the total U. Oracle Corporation ( specializes in developing and marketing Enterprise software products — particularly Database management systems In 2007 Oracle ranked Sun Microsystems Inc ( is a multinational vendor of Computers computer components Computer software, and Information technology services S. GDP. ^[20] The study was conducted using a methodology developed by the World Intellectual Property Organization. The World Intellectual Property Organization ( WIPO) is one of the 16 specialized agencies of the United Nations. ^[20] The study found that fair use dependent industries are directly responsible for more than 18% of U. S. economic growth and nearly 11 million American jobs. ^[20] “As the United States economy becomes increasingly knowledge-based, the concept of fair use can no longer be discussed and legislated in the abstract. It is the very foundation of the digital age and a cornerstone of our economy,” said Ed Black, President and CEO of CCIA. ^[20] “Much of the unprecedented economic growth of the past ten years can actually be credited to the doctrine of fair use, as the Internet itself depends on the ability to use content in a limited and nonlicensed manner. "^[20]

Fair use and parody

Producers or creators of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. A parody (ˈpɛɹədiː US, [ˈpaɹədiː] UK) in contemporary usage is a work created to mock comment on or poke fun at an original work its subject The fair use cases addressing parodies distinguish between parodies—using a work in order to poke fun at or comment on the work itself—and satires—using a work to poke fun at or comment on something else. Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.

In Campbell v. Acuff-Rose Music, Inc.^[15] the Supreme Court recognized parody as a fair use, even when done for profit. Campbell v Acuff-Rose Music, 510 US 569 ( 1994) was a United States Supreme Court Copyright law case that stands for the proposition The Supreme Court of the United States is the highest judicial body in the United States and leads the federal judiciary. Roy Orbison's publisher, Acuff-Rose Music Inc., had sued 2 Live Crew in 1989 for their use of Orbison's "Oh, Pretty Woman" in a mocking rap version with altered lyrics. Roy Kelton Orbison ( April 23 1936 &ndash December 6 1988) nicknamed "The Big O" was an influential Grammy Award -winning Acuff-Rose Music was an American Music Publishing firm headquartered in Nashville Tennessee. 2 Live Crew is a hip hop group from Miami Florida. They caused considerable controversy with the Sexual themes in their work particularly on their Year 1989 ( MCMLXXXIX) was a Common year starting on Sunday (link displays 1989 Gregorian calendar) " Oh Pretty Woman " is a song released in 1964, which was a worldwide hit for Roy Orbison. The Supreme Court viewed 2 Live Crew's version as a ridiculing commentary on the earlier work, and ruled that when the parody was itself the product rather than used for mere advertising, commercial sale did not bar the defense. The Campbell court also distinguished parodies from satire, which they described as a broader social critique not intrinsically tied to ridicule of a specific work, and so not deserving of the same use exceptions as parody because the satirist's ideas are capable of expression without the use of the other particular work. Satire is often strictly defined as a literary genre or form; although in practice it is also found in the graphic and Performing arts In satire human

A number of appellate decisions have recognized parody as a protected fair use, including both the Second (Leibovitz v. Paramount Pictures Corp.) and Ninth Circuits (Mattel v. The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals. Leibovitz v Paramount Pictures Corp is an influential 1998 Second Circuit Fair use case Walking Mountain Productions). Most recently, Suntrust v. Houghton Mifflin, a suit was brought unsuccessfully against the publication of The Wind Done Gone, which reused many of the characters and situations from Gone with the Wind, but told the events from the point of view of the slaves rather than the slaveholders. The Wind Done Gone ( 2001) is the first Novel written by Alice Randall. This is about the 1936 American Novel. For the film see Gone with the Wind (film Gone with the Wind is a 1936 American The Eleventh Circuit, applying Campbell, recognized that The Wind Done Gone was a protected parody, and vacated the district court's injunction against its publication. The United States Court of Appeals for the Eleventh Circuit is a federal court with Appellate jurisdiction over the district courts in the following The United States District Court for the Northern District of Georgia serves the residents of forty-six counties

Fair use on the Internet

A US court case in 2003, Kelly v. Arriba Soft Corporation, provides and develops the relationship between thumbnails, inline linking and fair use. Kelly v Arriba Soft Corporation (280 F3d 934 (CA9 2002 withdrawn, re-filed at 336 F Thumbnails are reduced-size versions of Pictures used to help in recognizing and organizing them serving the same role for images as a normal text index does for Inline linking (also known as hotlinking, leeching, piggy-backing, direct linking, offsite image grabs and bandwidth theft In the lower District Court case on a motion for summary judgment, Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly's website in Arriba's image search engine. For the simplification and shortening of a longer text see Summary. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation, who argued that it is clearly covered under fair use. The Electronic Frontier Foundation ( EFF) is an international non-profit advocacy and legal organization based in the United States with the stated purpose of being dedicated

On appeal, the 9th Circuit Court of Appeals found in favor of the defendant. In reaching its decision, the court utilized the above-mentioned four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution like the original artwork was. Second, the fact that the photographs had already been published diminished the significance of their nature as creative works. Third, although normally making a "full" replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails. To the contrary, the thumbnail searches could increase exposure of the originals. In looking at all these factors as a whole, the court found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003. Events 1456 - A retrial verdict acquits Joan of Arc of heresy 25 years after her death Year 2003 ( MMIII) was a Common year starting on Wednesday of the Gregorian calendar. The remaining issues were resolved with a default judgment after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement. Default judgment is a binding Judgment in favor of the Plaintiff when the Defendant has not responded to a Summons or has failed to appear before

Common misunderstandings

Because of the deliberate ambiguity of fair use, it is commonly misunderstood. Here are some of the more common misunderstandings with explanations of why they are wrong:

• Any use that seems fair is fair use. In the law, the term "fair use" has a specific meaning that only partly overlaps the plain-English meaning of the words. While judges have much leeway in deciding how to apply fair use guidelines, not every use that is commonly considered "fair" counts as fair use under the law.
• Fair use interpretations, once made, are static forever. Fair use is decided on a case by case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different point in time can make a difference due to changing social, technological, or other surrounding circumstances.
• If it's not fair use, it's copyright infringement. Fair use is only one of many limitations, exceptions, and defenses to copyright infringement. For instance, the Audio Home Recording Act establishes that it is legal in some circumstances to make copies of audio recordings for non-commercial personal use.
• It's copyrighted, so it can't be fair use. On the contrary, fair use applies only to copyrighted works, describing conditions under which copyrighted material may be used without permission. If a work is not copyrighted, fair use does not come into play, since public-domain works can legally be used for any purpose.
  • Note: In some countries (including the United States of America), the mere creation of a work establishes copyright over it, and there is no legal requirement to register or declare copyright ownership.
• Acknowledgment of the source makes a use fair. Giving the name of the photographer or author may help, but it is not sufficient on its own. While plagiarism and copyright violation are related matters—-both can, at times, involve failure to properly credit sources—-they are not identical. Plagiarism is the unauthorized use or close imitation of the language and thoughts of another author and the representation of them as one's own original work Copyright law protects exact expression, not ideas: for example, a distant paraphrase that lays out the same argument as a copyrighted essay is in little danger of being deemed a copyright violation, but it could still be plagiarism. On the other hand, one can plagiarize even a work that is not protected by copyright, such as trying to pass off a line from Shakespeare as your own. Plagiarism—using someone's words, ideas, images, etc. without acknowledgment—is a matter of professional ethics. Copyright is a matter of law. Citing sources generally prevents accusations of plagiarism, but is not a sufficient defense against copyright violations (otherwise, anyone could legally reprint an entire copyrighted book just by citing who wrote it).
• Noncommercial use is invariably fair. Not true, though a judge may take the profit motive or lack thereof into account.
• Strict adherence to fair use protects you from being sued. Fair use is a defense against an infringement suit; it does not restrain anyone from suing. The copyright holder may legitimately disagree that a given use is fair, and they have the right to have the matter decided by a court. This means that fair use is not really a deterrent to SLAPP. A Strategic Lawsuit Against Public Participation (" SLAPP " is a Lawsuit or a threat of lawsuit that is intended to intimidate and silence critics by burdening
• The lack of a copyright notice means the work is public domain. Not usually true. United States law in effect since March 1, 1989 has made copyright the default for newly created works. Events 86 BC - Lucius Cornelius Sulla, at the head of a Roman Republic army enters in Athens, removing the Tyrant Year 1989 ( MCMLXXXIX) was a Common year starting on Sunday (link displays 1989 Gregorian calendar) For a recent work to be in the public domain the author must specifically opt-out of copyright. For works produced between January 1, 1923 and March 1, 1989, copyright notice is required; however, registration was not required^[23] and between January 1, 1978 and March 1, 1989 lack of notice is not necessarily determinative, if attempts were made immediately to correct the lack of notice. New Year See also New Year The Ancient Romans began their consular year on January 1st since 153 BC Year 1923 ( MCMXXIII) was a Common year starting on Monday (link will display the full calendar of the Gregorian calendar. Events 86 BC - Lucius Cornelius Sulla, at the head of a Roman Republic army enters in Athens, removing the Tyrant Year 1989 ( MCMLXXXIX) was a Common year starting on Sunday (link displays 1989 Gregorian calendar) New Year See also New Year The Ancient Romans began their consular year on January 1st since 153 BC Year 1978 ( MCMLXXVIII) was a Common year starting on Sunday (link displays the 1978 Gregorian calendar) Events 86 BC - Lucius Cornelius Sulla, at the head of a Roman Republic army enters in Athens, removing the Tyrant Year 1989 ( MCMLXXXIX) was a Common year starting on Sunday (link displays 1989 Gregorian calendar) Any American works that did not have formal registration or notice fell into the Public Domain if registration was not made in a timely fashion. For international works, the situation is even more complex. International authors who failed to provide copyright notice or register with the U. S. copyright office are given additional contemporary remedies that may restore American copyright protection given certain conditions. International authors/corporations who fail to meet these remedies forfeit their copyright. An example of a company who failed to prove copyright was Roland Corporation and their claimed copyright on the sounds contained in their MT-32 synthesizer. is a Japanese manufacturer of Electronic musical instruments electronic equipment and Software. The Roland MT-32 Multi-Timbre Sound Module is a MIDI Synthesizer module first released in 1987 by Roland Corporation.
• It's okay to quote up to 300 words. The 300-word limit is reported to be an unofficial agreement, now long obsolete, among permissions editors in the New York publishing houses: 'I'll let you copy 300 words from our books if you let us copy 300 words from yours. ' It runs counter to the substantiality standard. As explained above, the substantiality of the copying is more important than the actual amount. For instance, copying a complete short poem is more substantial than copying a random paragraph of a novel; copying an 8. 5×11-inch photo is more substantial than copying a square foot of an 8×10-foot painting. In 1985, the U. S. Supreme Court held that a news article's quotation of approximately 300 words from former President Gerald Ford's 200,000 word memoir was sufficient to constitute an infringement of the exclusive publication right in the work. ^[24]
• You can deny fair use by including a disclaimer. Fair use is a right granted to the public on all copyrighted work. Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use a non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or license agreements may take precedence over fair use rights. ^[25]
• If you're copying an entire work, it's not fair use. While copying an entire work may make it harder to justify the amount and substantiality test, it does not make it impossible. For instance, in the Betamax case, it was ruled that copying a complete television show for time-shifting purposes is fair use. Sony Corp of America v Universal City Studios Inc, 464 US 417 (1984 also known as the " Betamax case " was a decision by the Supreme
• If you're selling for profit, it's not fair use. While commercial copying for profit work may make it harder to qualify as fair use, it does not make it impossible. For instance, in the 2 Live Crew—Oh, Pretty Woman case, it was ruled that commercial parody can be fair use. Campbell v Acuff-Rose Music, 510 US 569 ( 1994) was a United States Supreme Court Copyright law case that stands for the proposition

Influence

The doctrine of fair use is no longer exclusive to the United States, with other jurisdictions having either implemented such a doctrine or considering its introduction.

Fair use in Israel

In November 2007, Israel passed a new Copyright Law that included a US style fair use exception. The law, which takes effect in May 2008, permits the fair use of copyrighted works for purposes such as private study, research, criticism, review, news reporting, quotation, or instruction or testing by an educational institution. ^[26] The law sets up four factors to determine whether a use is fair use.

Fair use in South Korea

Korean Copyright Act article 1 rules that this law's two purpose:

• To protect copyright.
• To promote fair use.

International situation

While influential in some quarters, other countries often have drastically different fair use criteria to the US, and in some countries there is little or no fair use defense available. Even within Europe, rules vary greatly between countries. Some countries have the concept of fair dealing instead of fair use. Fair dealing is a Doctrine of Limitations and exceptions to copyright which is found in many of the Common law jurisdictions of the Commonwealth of

See also

• Berne three-step test
• Defenses and Exceptions section of United States copyright law
• Copyfraud
• Fair dealing
• Fair use (US trademark law)
• Glossary of legal terms in technology
• Limitations and exceptions to copyright

References

External links and sources

Statute & case law resources

• Limitations on exclusive rights: Fair use—from the US Copyright Office
• Some more key fair use cases—from IPWatchdog website

Economic Benefits of Fair Use

• Computer and Communications Industry Association. "Economic Contribution of Industries Relying on Fair Use." September 2007

Resources to learn about fair use:

• Best Practices in Fair Use by the American University Center for Social Media
• Fair Use Network by the NYU Brennan Center for Justice, Free Expression Policy Project
• Fair Use of Copyrighted Materials by Georgia Harper, The Copyright Crash Course, University of Texas at Austin Libraries
• Bound by Law by Duke University's Center for the Study of the Public Domain
• Fair Use: Copyright Management Center, with Copyright Essentials including a fair use checklist. Marjorie Heins is an activist writer and founder of the Free Expression Policy Project (http//fepproject
• Copyright and Fair Use—from Stanford University Libraries
• YouTube video "A Fair(y) Use Tail",by Eric Faden, produced by Media Education Foundation
• Checklist for fair use (PDF)—from Indiana University-Purdue University Indianapolis
• "When Copying Is Okay: The 'Fair Use' Rule"—from Nolo. Sut Jhally (born 29 May 1955) is a professor of Communication at the University of Massachusetts Amherst and is a cultural studies scholar in com/Law for All
• Fair Use in a Nutshell: A Roadmap to Copyright's Most Important Exception—by Lloyd J. Jassin; from CopyLaw. com
• A Practical Guide to Fair Use Doctrine (PDF)—from Signal or Noise 2K5 at Harvard University
• A guide to the circumstances of fair use—from the University of Texas Systems Dept.
• How Much of Someone Else's Work May I Use Without Asking Permission?: The Fair Use Doctrine, Part I and Fair Use: Interpretations and Guidelines—The Fair Use Doctrine Part II, The Publishing Law Center
• Fair Use chart. Helps you remember the guidelines.
• Parody and Fair Use An article on fair use and parody from James S. Huggins. Includes links to several rulings, including the Pretty Woman parody.

Significant meetings and conferences on fair use:

• The New York Institute for the Humanities Comedies of Fair U$e conference, 2006 at Archive. org; see also notes at Newsgrist blog
• Article on the benefits of Fair Use to the U.S. ecomony
• Study of benefits Fair Use provides to U.S. economy

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