2. •Traditional understanding
•Fair use and an infringing use
•Section 107 of the Copyright Act
•Additional conditions of fair use
•Comment
Outlines
3. • The traditional concept of fair use excused
reasonable unauthorized appropriations
from a first work, when the use to which the
second author put the appropriated material
in some way advanced the public benefit,
without substantially impairing the present
or potential economic value of the first work.
Traditional understanding
4. Justice Story distinguished between fair use and an
infringing use-
Fair use
Quotation of portions of a work as part of an essay
reviewing the work or as part of a biography of the
writer might satisfy the former standard.
Infringing use
If so much is taken, that the value of the original is
sensibly diminished or labors of the original author
are substantially to an injurious extent appropriated
by another, that is sufficient, in point of law, to
constitute a piracy pro tanto.
Folsom V Marsh case
Fair use and an infringing use
5. The court announced a constitutional
foundation for the fair use doctrine;
The fundamental justification for the fair use
privilege lies in the constitutional purpose in
granting copyright protection -
(1) to promote the progress of science and the
useful arts,
(2) to serve for public interest
Rosemont Enters V Random House, Inc
Purposes of fair use
6. Notwithstanding the provision of section 106, the fair
use of a copyrighted work, including such use by the
reproduction in copies or phonorecords of by any other
means specified by that section, for purposes such as
criticism, comment, news reporting, scholarship, of
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.
Section 107 of the Copyright Act
7. • Section 107 uses mandatory language to the
effect that in a fair use determination, the
“factors to be considered shall include” the four
listed. The preamble merely illustrates the sorts
of uses likely to qualify as fair uses under the
four listed factors.
• Section 107 does not means that to preclude
consideration of other conditions.
Pacific & S. Co. v. Duncan Case
Consideration of other conditions
8. There are three additional conditions to
consider fair use -
1. Incidental use
2. Public important
3. Requested permission
4. Unreasonable conduct of copyright owner
Additional conditions of fair use
9. In the case of Italian Book Co. v. ABC, portion of
plaintiff’s song performed in “Little Italy” street
festival was included in defendant’s television
news coverage of festival.
The courts have tended to be more lenient
when the unauthorized use was “incidental,” when
the plaintiff’s work was captured as part of a
larger permissible reproduction or performance.
Incidental use
10. In the case of Iowa state Univ. Research Found V
ABC, Emphasizing the equitable nature of the
defense, courts have cautioned, ‘ the fair use
doctrine is not a license for corporate theft,
empowering a court to ignore a copyright
wherever it determines the underlying work
contains material of public importance’
Public important
11. In the case of Fisher V Dees, one court has
observed: “Because fair use presupposes ‘good
faith’ and ‘ fair dealing,’…. Court may weigh ‘ the
propriety of the defendant’s conduct’ in the
equitable balance of a fair use determination.”
Related to the issue of improper conduct as a
factor beyond the four listed in section 107 is
whether or not the defendant requested
permission of the copyright owner before making
an unauthorized use.
Requested permission
12. In the case of Rosemont, just as many courts
have been disinclined to find fair use when they
regard the defendant's activity as wrongful or
immoral, by the same token, courts may be more
inclined to deem defendant’s use fair if it suspects
the copyright owner of unreasonable conduct
Unreasonable conduct of copyright owner
13. Fair use intended to balance the interests of
copyright holders with the public interest in the
wider distribution and use of creative works by
allowing as a defense to copyright infringement
claims certain limited uses that might otherwise
be considered infringement.
Comment
