To determine whether you are in the context of fair use, the law requires a balanced application of four factors. These four factors come directly from the fair dealing provision, section 107 of the U.S. Copyright Act, and have been studied and further developed in court decisions. The following summaries identify and explain the importance of factors related to many academic needs. For more information on the application of fair dealing factors, see the Fair Dealing Checklist. However, some courts have tried to resolve the problems related to the but for good reason. Some courts use the «substantial factor» test, which states that as long as a defendant`s actions were a significant factor in the crime, that defendant would be found guilty. In the firing squad example, all members of the firing squad would be found guilty. However, this test creates a problem where members of the firing squad whose bullets did not injure the victim are still guilty, even if their actions did not result in the death of the victim. Thus, the courts have found four other ways to deal with issues related to causation. Unfortunately, the only way to get a definitive answer to the question of whether a particular use is fair dealing is to have it clarified in the Federal Court. Judges use four factors to resolve fair dealing disputes, as explained in detail below.
It is important to understand that these factors are only guidelines that the courts can adapt to certain situations on a case-by-case basis. In other words, a judge has a great deal of freedom when making a fair dealing decision, so the outcome may be difficult to predict in a particular case. Another important fair dealing factor is whether your use deprives the copyright owner of revenue or undermines a new or potential market for the copyrighted work. Depriving a copyright holder of revenue is very likely to trigger a lawsuit. This is true even if you do not compete directly with the original work. These statements – known in legal jargon as «disclaimers» – are intended to prevent (or at least limit) copyright infringement. The most common of the half-million disclaimers used on YouTube is apparently «No Copyright Expected,» which, despite its ambiguous meaning, is about as effective as 90 MPH in your car with a sign that says «No speeding expected.» Other disclaimers indicate that the user claims fair use. Unfortunately, the use of fair use does not mean that the work is considered fair use. Only a court can determine this.
In truth, we don`t believe there really is a disclaimer that would be effective in preventing a lawsuit if your video violates someone else`s work. As with fair dealing, there is no clear line test to determine de minimis use. In another case, for example, a court found that the use of a copyrighted poster for a total of 27 seconds in the background of the Roc television show was not minor. What differentiates the use of the poster from the use of photos in the Seven case? The court noted that the poster was clearly visible and recognizable, with enough observable detail for the «average amateur observer» to see the artist`s imagery and colorful style. (Ring gold vs. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).) The purpose of the use is a factor that must be taken into account in determining whether or not a use is fair use, but it is not the only consideration. Some educational uses of copyrighted works are fair uses, others are not.
A disclaimer is a statement that «separates» your work from the work you borrow. For example, if you write an unauthorized biography of Mickey Mouse, you can include a disclaimer such as «This book is not affiliated with or endorsed by the Walt Disney Company.» Will it help your position if you use a disclaimer? In narrow cases where the court has difficulty making a fair dealing decision, a prominent disclaimer can have a positive effect on how the court views your use. In general, however, a disclaimer alone does not help. In other words, if fair use factors weigh on you, the disclaimer makes no difference. For example, in a case involving a Seinfeld quiz book, the publisher added a disclaimer that the book «has not been approved or authorized by any entity involved in the creation or production of Seinfeld.» Despite the disclaimer, the court found that the use of Seinfeld`s materials constituted a violation and not fair use. In a 1994 case, the Supreme Court emphasized that this first factor was an important indicator of fair use. It`s about whether the material was used to create something new, or whether it was literally copied into another work. When including parts of copyrighted works, ask yourself the following questions: When deciding whether a particular use is fair or not, the law states that at least four factors must be considered: Remember that it is your responsibility to understand the relevant law and whether it protects the use you intend to use. If you intend to use copyrighted material that you have not created, we strongly recommend that you first seek legal advice. Google cannot provide legal advice or make legal decisions. This factor focuses on the work used, and the law allows for a broader or narrower scope of fair use, depending on the characteristics or attributes of the work.
For example, the unpublished «nature» of a work, such as private correspondence or a manuscript, may hold against a determination of fair use. The courts argue that copyright owners should have the right to determine the circumstances of the «first publication.» The use of a work that is commercially available specifically for the education market is generally rejected and is unlikely to be considered fair use. In addition, courts tend to protect creative works more strongly; Therefore, fair use applies more to non-fiction than to fiction. Courts generally protect more art, music, poetry, feature films and other creative works than non-fiction. The impact on the market can be more complicated than the other three factors. Basically, this factor means that while you could have realistically purchased or licensed the copyrighted work, this fact weighs against a fair dealing determination. To assess this factor, you may need to conduct a simple market study to determine whether the work is reasonably available for purchase or licensure. A work may reasonably be available if you use a large portion of a book that is for sale at a typical market price. The «effect» is also closely related to the «goal». If your goal is research or science, it can be difficult to prove the effect on the market.
If your goal is commercial, it may be easier to prove the negative impacts on the market. Occasional quotes or photocopies may not harm the market, but reproductions of software works and entire videos may enter directly into potential markets for those works. Remember that all four factors must be taken into account. If you need help with this analysis, contact UW TechTransfer Digital Ventures. If you look at fair dealing cases, you may find that they sometimes contradict or conflict with the rules expressed in this chapter.