Copyright: Part 3 – Fair Use

Recently, a college professor friend called to ask my advice. One of her students created a PowerPoint presentation for a class project. She wrote the text and used artwork she copied from a Web site to illustrate her presentation. My friend asked if I thought that use of the artwork fell within “fair use” since the student was using the art for a class project and not selling it or even making it publicly available. Absolutely not!

One of biggest misconceptions about copyright may be the idea that copyrighted works can be used if the user doesn’t recognize monetary gain from the use. Copyright gives the author complete control of how the work is used, whether or not the user realizes any value from the use. A blogger who copies a post from another blog and gives the author credit is still infringing copyright because the author no longer has complete control of the work. A student who copies artwork to use as illustrations in a class project is still infringing even if no one but the student and the professor see the project.

The Copyright Office offers a fact sheet on fair use. Criticism, news reporting, research, and teaching are among acceptable uses. However, whether a specific use of copyrighted material is fair use or infringement depends on several factors, including 1) the purpose of the use, 2) the nature of the copyrighted work, 3) the amount of material used in relation to the total work, and 4) the effect of the use on the potential market or value of the work.

There is no standard for fair use. Some institutions and organizations have internal policies, such as ten percent of a copyrighted work can be used for academic purposes. However, those criteria are arbitrary and may not hold up in court. Ten percent of one work may have little effect on the value of the total work, but ten percent of another may have a significant adverse effect on the market.

The best policy is to ask permission of the copyright holder if there is any doubt that the use is fair use. The author has the complete control over the work and can choose how much or how little to allow to be quoted. Authors can transfer copyright or grant exclusive or non-exclusive rights for any amount of time, for a fee or for free. The author might grant the exclusive right to one publication to publish the work first, then grant to other publications non-exclusive rights to publish the same piece after the first rights period ends.

Most bloggers believe it is fair use to post a brief excerpt with a link to the full article on the author’s blog or Web site fair use. However, the law does not state this. The law states that the four factors listed above be considered to determine whether the use is fair use under the copyright law.

Let’s compare two hpothetical cases of use by those criteria.

Hypothetical Case #1: A blogger posts a brief excerpt of the piece with a link to the complete post:

  1. The purpose of the use is likely educational rather than commercial, even though the quote might improve traffic and income. 
  2. The copyrighted work (a blog post) is intended to be read online by the public, and a link from another blog would likely increase the number of people who read the article. If the author earns income from advertising or product sales, the opportunity for that income is still there.
  3. The excerpt is a small portion of the total work.
  4. The use isn’t likely to damage the potential market for the work. In fact, linking to the post could possibly make the work more profitable if the author earns income from advertising.

Hypothetical Case #2: A blogger publishes the complete post, giving the author credit and linking to the author’s blog:

  1. The line blurs between educational and commercial use. The material does educate readers, but the blogger posting another writer’s work is likely receiving commercial benefit from advertising.
  2. The copyrighted work (a blog post) is intended to be read online by the public, and publishing the material for another audience would likely increase the number of people who read the article. However, if the author earns income from advertising or product sales, the opportunity for that income is lost.
  3. The post is the entire work.
  4. The use will reduce the value of the work because the author loses the opportunity to earn income from readers.

This is my personal analysis of the two cases. Since the law is unclear, fair use or infringement can be determined only in court. Asking permission prevents any future problems.

Writers will often freely give permission to quote part of an article and link to the complete work, and they may give permission to publish the entire article on another site or in another publication. However, the right to grant or not grant permission belongs to the author and no one else.

What do you think constitutes fair use of a blog post or article? What about books and other long works? Share your thoughts in comments, and be sure to read other comments to carry on the conversation.

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