Q.What are the four factors to consider in deciding whether a use of copyrighted material is a fair use? ANS: 1. Purpose and Character of the Use The first fair use factor refers mainly to the function for which the copied material is being used. Since copyright law favors the encouragement of scholarship, research, education, and commentary, a judge is more likely to make mak e a determination of fair use if the defendant's use is noncommercial, educational, scientific, or historical. However, an educatio nal or scientific use that is for commercial purposes may not be excused ex cused by the fair use doctrine. For example, copying a scientist's statements in a cigarette ad vertisement or the large scale videotaping of educational programming is not co nsidered fair use. Similarly, the fact that a use is not for profit will not necessarily excuse an infringing use. Ho wever, copying a famous painting in an academic journal about aesthetics is more likely to qualify as fair use. In 1995, this first fair use factor was elevated to the most important factor by the U.S. Supreme Court. What was important, stated the high court, was that the purpose and character ch aracter of the use was transformative transformative;; that the alleged infringement made a new statement using the work.
2. Nature of the Copyrighted Work The second factor in the fair use determination det ermination is the nature of the work that is being copied. For example, a court will ordinarily consider whether the work being copied is informational or entertaining in nature. A judge is more likel y to find a determination of fair use if material is copied from a factual work, such as a biography, than from a fictional work, such as a novel. As the Supreme Court stated in Sony Corp. of America v. Universal City Studios, Inc., Inc., "copying a news broadcast may have a stronger claim to fair use than copying a motion picture." Why? Because copying from informational works such as scholarly, scientific, or news journals encourages the free spread of ideas and encourages the creation of new scientific scie ntific or educational works, all of which benefit the public. In addition, the court will consider whether the wo rk that is copied is published or unpublished. unp ublished. The scope of fair use is narrower with respect to unpublished works because of the author's right to control the first public appearance of his or her expression. For example, in the case of Salinger v. Random House, House, a biographer paraphrased portions of letters written by J.D. Salinger. Although the public could read these letters at a university library, Mr. Salinger had never authorized reproduction or publication of the letters. Despite the scholarly purpose of the proposed Salinger biography, the court would not permit the unauthorized paraphrasing of Mr. Salinger's unpublished letters as a fair use.
3. Amount of Copyrighted Work Used
How much of the original work does the infringer take? One sentence of a book, or an entire chapter? A five-second clip of a film, or the whole movie? This factor will also weigh on a judge's mind. In one case, case, a court permitted a biographer to quote from six unpublished letters and ten unpublished journal entries of the late novelist Richard Wright. One factor that weighed in favor of the biographer was the amount of the portions that were used. The court determined that no more than 1% of Mr. Wright's unpublished letters and journal we re copied. When considering the amount and substantiality of the portion taken, the court looks at not just the quantity of the material but the quality of the material taken. For example, the copying of one minute and 15 seconds of a 72-minute Charlie Chaplin film was considered substantial and was not permitted as a fair u se. In rare cases, copying of a complete work may be considered as a fair use. For example, the Supreme Court in the Sony case Sony case excused the off-the-air copying of complete television programs.
4. Effect of the Use on the Potential Market for the Work The fourth factor in a fair-use determination is the effect of the use on the potential p otential market for the work that was copied. Consideration of this factor is intended to strike a balance between the benefit that the public will derive if the use is permitted and the personal gain that the copyright owner will receive if the use is denied. A judge must consider the effect on the potential market for the copyrighted work. This consideration goes beyond the past intentions of the author or the means by which the author is currently exploiting the work. For example, in a case concerning a photograph that was adapted to a wood sculpture, the court recognized the existence of a market for new versions or new uses of the photograph, and determined that the unauthorized use of the photographic image undermined the potential market. Some uses are not considered to undermine the potential market. Copying a magazine cover for purposes of a comparative advertisement is a fair use because the comparative advertisement does not undermine the sales or need ne ed for the featured magazine. No customer would not buy not buy the magazine merely because of the advertisement. Similarly, it was the lack of market damage in the Sony case Sony case that convinced the Supreme Court to permit off-air videotaping.
