Showing posts with label transformative use idea/expression dichotomy. Show all posts
Showing posts with label transformative use idea/expression dichotomy. Show all posts

Wednesday, March 3, 2010

Fair Use in a Nutshell

A Practical Guide to Fair Use
By Lloyd J. Jassin

“Words must be weighed not counted.”
-- Old Yiddish proverb
Unfortunately, many creative projects are stillborn or abandoned, because the author, or the author's producer or publisher partner, was intimidated by the subject of “fair use.” This uncertainty is regrettable, since, under many conditions, fair use allows you, in the interest of the public good, to copy, display and publish copyrighted works without payment or permission.  While not a substitute for legal advice, this article provides guidelines that will and help you to avoid potential problems and allow you take full advantage of the fair use doctrine.

The Basics

Fair use allows scholars, researchers and others to borrow or use small (and sometimes large) portions of in-copyright works for socially productive purposes without seeking permission.   The doctrine -- which complements the First Amendment -- helps courts avoid rigid application of copyright law where rigid application would "stifle the very creativity which the law is designed to foster."  Against this backdrop, fair use can be looked at as a balancing act.  It is an imperfect attempt to reconcile the competing ideals of free speech with the property rights of individual creators.   Fair use recognizes that the reason for our nation's copyright laws is not so much for individual copyright owners, but, rather to promote the progress of  art and science.  Therefore, if you are going to borrow something, make sure you are also giving something back.   Use what you borrow as a springboard.  Amplify it.  Transform it with new meaning.  Add something that infuses the original with new insight.  Help evolve the original, don't just kidnap it. 

While invaluable to scholars, the media and business people, it should be noted that fair use is not a right but a defense to copyright infringement.   As such, it should be looked upon as a privilege, and not a right.  The central point is that certain fair use decisions involve risk.   

When Do I Need to Ask Permission?

If your work contains "borrowed" material, and you have not obtained permission from the owner of the work, it can only be used if:

(i)  the material is in the "public domain" (i.e. out of copyright);

(ii)  the material is uncopyrightable (e.g., unadorned ideas are common property);

(iii) the work is subject to a "Creative Commons" license; or

(iv) the proposed use is a "fair use."

Some people use Creative Commons licenses to make their works available for free to the public.  The license appears in close proximity to the work.  With a Creative Commons license, the author or creator chooses a set of conditions they wish to apply to their work.

If the you plan to make use of a work that does not fall within these four safe havens, then you must obtain a license or permission from the owner of the work.  Begin the process early.  Locating rights holders is not always easy, and negotiating rights and permissions takes time.

Other Copyright Safe Havens

There are certain types of works that are immune from copyright protection altogether.  For example, copyright does not protect unadorned or fundamental ideas, concepts, procedures, recipes, principles or discoveries. This legal conclusion represents an acknowledgment by the courts that the progress of art and science is cumulative.  Innovation, whether in the arts or sciences, doesn't happen from scratch.  For Robin Gross, this is "part of the copyright bargain that strikes a balance between protection for the artist and rights for the consumer."  Copyright does not protect ideas. Copyright, however, does protect the way ideas, concepts, procedures, principles and discoveries are expressed.