What is Fair Use?
by Mark Monlux, markmonlux.com
From the Copyright Office’s website.
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright act (title 17, U.S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. 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.
The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.
Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.
The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.
This article was originally published in the Graphic Artists Guild column, Dear Mark. www.markmonlux.com
© 2009 All Dear Mark materials are copyrighted by Mark Monlux, and may not be reproduced in any way without expressed written permission.
DISCLAIMER: To the best of my action or belief the material posted on “Dear Mark” discusses general principles of law in response to issues of concern to the illustration community. Nothing posted by Mark Monlux should be construed to be a substitute for advice of counsel regarding the specific facts and circumstances of an individual case.
Laws and their interpretation differ from jurisdiction to jurisdiction. Legal advice addressing a specific situation should be sought from an attorney duly licensed in the appropriate jurisdiction.
Displaying Work in Your Portfolio
by Lisa Shaftel
You may display your work in your portfolio— even if you no longer own the rights to it—under the doctrine of “fair use,” as long as: 1. you are not selling reproductions of the work; 2. you have credited the rights holder; and 3. you are not violating any non-disclosure agreement with the rights holder.
Contractors, Copyright & Licensing: May I Promote Work I Did for Someone Else?
by Mark Monlux
Contractors license their copyright to the works they have created to their clientele. All rights to the work remain with the creator of the work unless they are signed over. It is well advised for creators to provide clarification in their contract that the creator’s right to display work created for a client in a portfolio is reserved.
Fair Use or Infringement?
by Linda Joy Kattwinkel, Esq.
Showing work you’ve created in your portfolio, no matter who owns the copyright, probably falls under Fair Use, although there may be some circumstances which could pose a problem. Lawyer Linda Joy Kattwinkel presents another perspective on Fair Use as it applies to presenting work in your portfolio.
Membership is the key to unlocking more than 20 contracts that can be downloaded, edited and customized for use in your business.
Available in Word or Rich Text formats.
Looking to keep up with industry trends and techniques?
Taking your creative career to the next level means you need to be up on a myriad of topics. And as good as your art school education may have been, chances are there are gaps in your education. The Guild’s professional monthly webinar series, Webinar Wednesdays, can help take you to the next level.
Members can join the live webinars for FREE - as part of your benefits of membership! Non-members can join the live webinars for $45.
Visit our webinar archive page, purchase the webinar of your choice for $35 and watch it any time that works for you.