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Copyright or Copy Wrong?
Seventh in a Series

What’s “fair use” in the copyright world?

By Gregory Hancks, AIA

You may know (or think you know) your basic rights and obligations under copyright law. But what misconceptions are commonly held by people you work with, your boss or employees, your clients, or your consultants? You might be surprised.

This is the seventh in a series of articles exploring various aspects of copyright that are frequently misunderstood. In this installment, we consider the unfortunately named doctrine of “fair use,” which in architectural practice is unlikely to be a valid defense against a claim of copyright infringement.

The challenges of technology

Readers of a certain age will remember when videotapes revolutionized our ability to watch movies at home and to record television shows for later viewing. Sony’s Betamax may have ultimately lost the videotape format war with JVC’s VHS, but along the way Sony won a legal battle that paved the way for home recording of broadcast and cable programs using technologies like DVDs and TiVo DVRs. In a 1984 U.S. Supreme Court case, Sony succeeded in establishing that such recording of copyrighted programs for the purpose of “time-shifting” was a “fair use” under copyright law. (See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417). This is not the first time that technological change had posed a challenge for copyright law, and will hardly be the last.

In 1908, the Supreme Court wrestled with whether piano rolls sold for use in player pianos infringed on the composer’s copyright of the sheet music from which the rolls were derived. The court concluded that piano rolls were not a copyright infringement. Justice Oliver Wendell Holmes Jr. concurred, but said the law should be changed to protect the composers.

Yet to be fully resolved are the copyright implications of Google’s efforts to scan and make entire libraries available online. Google’s primary legal justification for scanning books without the copyright holder’s permission has been that the proposed digital distribution method is a “fair use” of the books, and is therefore not copyright infringement. What exactly is this exception called “fair use”?

A bit of history

The concept of “fair use” appears by name in federal court opinions as early as 1869. At that time, a right of fair use would enable someone to use copyrighted material in a way that “will not cause substantial injury” to the copyright owner, and “where the amount copied is small and of little value,” or “if there is no proof of bad motive.” For more than a century, fair use remained a common law concept established by courts.

It was only in 1976, when Congress adopted an entirely new copyright act, that fair use was codified in the federal statutes that define the scope of copyright. Even then, Congress merely adopted the judicial doctrine of fair use as it had evolved by that time. The 1976 statute’s test for a non-infringing “fair use” of copyrighted material (17 U.S.C. § 107), which is still the law, warrants examining at length:

    [T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or 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.

As this brief history suggests, it might not be easy to determine whether any particular use of copyrighted material is an infringement or is instead a non-infringing fair use. The four factors listed above in Section 107 are anything but conclusive in most circumstances. In fact, in the 1984 Sony case involving videotaping, the Supreme Court itself was divided five to four. The dissenting opinion would not have permitted any “general exemption for a single copy made for personal or private use.”

By any other name

Although the term “fair use” describes a highly technical legal concept, it has found its way into mainstream language. Fair use is frequently cited by those who have never read 17 U.S.C. § 107 or any court opinion on copyright to justify using copyrighted material owned by others. The blame might lie with the term’s simplicity. After all, everyone knows what’s “fair.”

As anyone over the age of six could attest, however, what seems clearly fair to one person frequently seems clearly unfair to another. The name “fair use” implies a subjective evaluation that anyone can make based on personal values. But what person who copies someone else’s intellectual property doesn’t believe that the use is fair?

Undoubtedly, many people believe that copying material for private use, such as copying rented DVDs, is a fair use, but that’s not true. The increasing amount of copyrighted work posted and available for free on the Internet has only contributed to the confusion. The Sony case did not establish a blanket exemption to permit copying material for private use, such as copying rented videotapes. The case established only that the home copying of broadcast programs for the limited purpose of viewing them later was permissible.

Is what you want to do with that photo, drawing, or specification text a fair use? A definitive answer is possible only where a court has already made a ruling in the same or very similar situation.

In the context of the practice of architecture, fair use is not likely to be a successful defense, if only because of Section 107’s first factor. An architect’s use of copyrighted material is typically of a “commercial nature.” Whether the contested use involves display on a firm’s website, a presentation directly to a prospective client, or incorporation into project documents, the copying is being done in hopes of financial gain. As a result, the other three Section 107 factors would need to weigh heavily on the side of fair use.

Here are two practical suggestions for using others’ material when there is any question about fair use: Consider how you would react to the proposed use if you were instead the owner of the material in question. And, if still in doubt, ask the copyright owner for permission to use the material. Fair use disputes are almost always best resolved before they happen.

   
   
     

Recent Related:

Copyright or Copy Wrong: Part VI

Copyright or Copy Wrong: Part V

Copyright or Copy Wrong: Part IV

Copyright or Copy Wrong: Part III

Copyright or Copy Wrong: Part II

Copyright or Copy Wrong: Part I

Reference:

Further information is available on the U.S. Copyright Office website. Application of copyright law in particular situations may be complex. You should consult a qualified lawyer when you need advice about copyright issues in your business.

To request a copy of this article that includes supporting citations, or to ask a copyright question that could be discussed in a future article in this series, send an e-mail to copyright@aia.org.

 

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