Use of Copyrighted Materials: I publish various documents and media materials on this website, which may be used by other nonpartisan individuals and organizations for the sole purpose of promoting the nonpartisan, nonprofit principles reflected throughout this website. If you use any of the materials on this website, please clearly attribute them to Ferris Eanfar and include a hypertext link to the FerrisEanfar.net website. Thank you.
Use of Copyrighted Third-Party Materials: Occasionally I may integrate materials from other nonpartisan organizations to serve various nonprofit and nonpartisan purposes, including education about topics that are relevant to my writing or political satire that reinforces various principles that I think are important. In all cases, the use of third-party copyrighted materials is permitted either explicitly by the copyright holders or it is permitted under the legal doctrine of “Fair Use.”
The following information regarding the legal doctrine of Fair Use is provided by PublicCounsel.org, which is the largest nonprofit law firm in the United States.
Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for certain purposes, such as commentary and criticism, nonprofit educational purposes, or parody. This principle recognizes that society can often benefit from the unauthorized use of copyrighted materials, when the use furthers scholarship and education or informs the public.
Fair use is a defense against a claim of copyright infringement. “Fair use” is infringement (i.e., an unauthorized use of a copyrighted work), but it is a form of infringement that courts excuse due to its greater social benefit. If a copyright owner challenges someone’s infringing use of a work in court, and the court determines that the use is “fair use,” then the infringer will not face any legal consequences.
Who decides whether or not something is “fair use”? How will they decide? Fair use is a legal defense to an infringement claim. Therefore it will be up to the court to determine whether or not your use of a copyrighted work is fair use. Courts will consider the following four factors when determining whether or not a use is a “fair use”:
- The purpose and character of the use. The court will take into account the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. The court will also ask whether the copyrighted material taken has been used to help create something new or has been appropriated verbatim into another work. Using a copyrighted work to add something new to the work, with a further purpose or different character, so that the first work’s expression, meaning or message has been altered, is called a transformative use. While transformative use is not necessary in order for there to be a finding of fair use, the more transformative the new work, the less significant the other factors become.
- The nature of the copyrighted work. Some copyrighted works are closer to the “core” of copyright protection than others. Fictional and creative works, such as plays, novels or visual art, are closer to the core of protected expression than primarily factual works. Fair use is more difficult to establish when these “core” creative or fictional works are copied. Because the dissemination of facts or information benefits the public, you have more leeway to copy from factual works than you do from fictional works.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Generally, the larger the portion of the copyrighted material that is taken and used, the lower the likelihood that the use will constitute a fair use. However, even if you take a small portion of a work, your copying will not be a fair use if the portion taken is the “heart of the work.” If the small portion of the copyrighted material that is copied is an essential part of that work, the court will not only look at the amount of the work that is taken, but also consider that portion’s quality and importance to the work as a whole.
- The effect of the use upon the potential market for the copyrighted work. Fair use is more difficult to establish if your use deprives the copyright owner of income or takes away from a new or future market for the copyrighted work. This is true even if your use of the work is not directly competing with his own use of his work; your use may be different but still diminish interest in the copyright owner’s original use of the work. In general, ask yourself: Could my use of this copyrighted work potentially affect the sales of this work? If so, it’s likely not a fair use.
Are there certain uses that are generally considered fair use? Transformative uses are more likely to be found to be fair use. In addition, the following types of uses are frequently found to be fair use:
- Commentary and criticism. If you are commenting upon or critiquing a copyrighted work, fair use principles allow you to reproduce some of the work to achieve your purposes. For example, it would be very difficult to write a book review and describe the writer’s words and images if you could not quote some of the language in the book. Using the writer’s exact words makes your critique of the book more effective. Allowing the use of copyrighted works for purposes of commentary and criticism is also grounded in the idea that a copyright owner should not be able to stifle comment or critiques about his work. The public benefits from an open debate, and this debate (including reviews and other comments) is enhanced by including some of the copyrighted material.
- Parody and satire. A parody is a work that ridicules another, usually well-known work, by imitating it in a (usually) comic way. Judges understand that, by its nature, parody demands some taking from the original work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to “conjure up” the original. The Supreme Court has recognized parody as a fair use, even when done for profit. There is, however, a distinction between parody and satire. A parody uses a work in order to poke fun at or comment on the work itself, while a satire uses a work to poke fun at or comment on something else, such as societal norms or cultural themes. A successful parody needs to use a large part of the work it is making fun of or commenting on in order for the consumer to understand what the source material for the parody is; this is a fair use of a copyrighted work that is transformative and for purposes of humorous commentary. A satire does not need to use a large portion of another work to make its broader point; the satirical point is not tied to ridicule of a specific work, so it does not get the same fair use exceptions because satirical author’s idea is capable of expression without the use of the other copyrighted work.
- Has the material I took from the original work been transformed by adding new expression or meaning?
- Was value added to the original by creating new information, new aesthetics, new insights and understandings?
- Did I use the work for my own personal commercial gain or to profit financially, or was there a broader benefit to the public?
The occasional use of third-party copyrighted material for various nonprofit and nonpartisan educational and satirical purposes is in the public interest and meets the definition of Fair Use in every respect.