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Copyright Law... — Part 3
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Public Domain
When copyright or other restrictions reach the end of their life, works are said to revert to the public domain.
The public domain comprises the body of all creative works and other knowledge in which no person or organization has any proprietary interest, such as a copyright or patent.
Such works and inventions are considered part of the public's cultural heritage, and anyone can use and build upon them without restriction. The public has the right to use and reuse works in the public domain without financial or social burden.
Fair Use
The fair use of a copyrighted work for purposes such as criticism, commentary, news reporting (factual information), teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
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 as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
1. Purpose and character — In order to justify the use as fair, one must demonstrate how a copy, a derivative work or a parody either advances knowledge or the progress of the arts through the addition of something new(transformative or derivative).
Mattel Inc. v. Walking Mountain Productions 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.
2. Nature of the copyrighted work — Although the Supreme Court has ruled that the availability of copyright protection should not depend on the artistic quality or merit of the work at issue, fair use analyses nevertheless consider certain aspects of the copied work, such as whether it is fictional or non-fictional. In order to prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas cannot be copyrighted-only their particular expression or fixation merits such protection.
Example: The Zapruder film of the assassination of President Kennedy, for example, was purchased and copyrighted by Time magazine. Yet the copyright was not upheld, in the name of the public interest, when Time tried to enjoin the reproduction of stills from the film in a history book on the subject.
3. 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.
Sampling in certain genres of music, however, is now strictly controlled. According to one federal circuit court, get a license or do not sample. Fair use does not come into play at all.
4. Effect upon work's value — The fourth fair use 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.
Because paying a royalty fee may be much less expensive than having a potential copyright suit threaten the publication of a completed work, many authors may seek a license even for uses that copyright law ostensibly permits without liability.
(Continue to Part 4...)
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