In the US, almost every work created after 1989 is copyrighted, whether it has a copyright notice or not. Subject to certain exceptions, the owner of a copyright has the exclusive right to do and authorize the reproduction of the work. Title 17 of the USC has certain exceptions to the limitation on exclusive rights, including "
fair use."
Quote:TITLE 17 > CHAPTER 1 > § 107
§ 107. Limitations on exclusive rights: Fair use
Release date: 2005-08-01
Notwithstanding the provisions of sections 106 and 106A,
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
So what does "fair use" mean? It's not an easy question to answer. "Fair use" is a balancing of the public's need to know and be informed against authors' need to protect and create a work.
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The copyright law contemplates that fair use of a copyrighted work without permission shall be for purposes such as (1) criticism and comment, (2) parody and satire, (3) scholarship and research, (4) news reporting and (5) teaching, and that such fair use will not result in the infringement of a copyrighted work. As one may expect, authors and publishers usually take a restrictive view of the fair use doctrine, while users of copyrighted materials generally take a more expansive view."
Source.
Section 107 contains 4 factors to be used in analyzing whether a use of copyrighted material qualifies as "fair use." There is a preference for "fair use" designation to noncommercial or educational works. "Fair use" is more likely the case where the copyrighted work is more "informative" in nature, as opposed to "creative." In other words, replication of a news account is more likely to be considered a "fair use" than replication of a short story (i.e., is the purpose of the original work to educate, or to entertain?). Applying the third factor, if you copy the entire work, it is more likely to not be "fair use" than if only replicating an excerpt. That's what Craven was referring to. The fourth factor looks to the effect or harm, actual or potential, on the market caused by the replication of the work. This final factor is probably the most essential.
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Courts have expressed this standard by finding that the unauthorized use is not fair use if the unauthorized use tends to lessen or negatively impact the potential sale of the original copyrighted work, interferes with the marketability of the work, or fulfills the demand for the original copyrighted work."
Source.
So what does "fair use" mean? Good question.
