Only fair

Jackson West at NewTeeVee — one of my daily reads — has an excellent and brief primer on fair use and comment. Nut graphs:

Section 1074 – remember it kids – of the Copyright Act defines the potentiality of a fair use defense as copyrighted work used “for purposes such as criticism, comment, news reporting, teaching…scholarship or research…”

Generally, it’s all about commentary. How can you prove, or how can your entertainment lawyer prove, that the nature of your use of the copyrighted work is critical. A limited excerpt of the work during a review or critique is clear cut fair use.

  • It’s not section 1074, it’s section 107.

    And it’s not “clear cut fair use”. You have to take a look at not only the purpose and character of the use (including whether such use is of a commercial nature or is for nonprofit educational purposes) but also 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.

    You can find exact wording at the Cornell University Law School website

    But yeah, it’s something we all have to be acutely aware of.

  • scote

    Unfortunately “clear cut fair use” is an oxymoron. The bounds of fair use are specifically vague because the statute and case law are vague.

  • The big question:

    Has anyone been nailed to the cross for violating “fair use?” Yes, it is vague for a reason. Just wondering how many folks have been dragged into court over this. Any attorneys out there that would know?

  • I think what Ms. Fahey means by ‘clear cut’ is that 99.9% of the time, an incesnsed plaintiff’s counsel will tell them they have not case, and therefore the use isn’t actionable. They may still go after the user as a form of punitive censorship (which happens all too often these days) but will know that they don’t really have a case.

    Though I, too, would be interested to see if there are any studies done on fair use cases that can find a quantifiable correlation between, say, the amount of content used relative to the amount of content created and the finaly judgement of that use.

    But I think scote is right in the sense that, like the legal definition of obscenity, “I know fair use when I see it.”