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Useful Notes: Fair Use

WARNING: This page is for US readers only.

The concept of "fair use" is unique to USA law. Other countries have specific and much narrower "copyright exceptions" rather than a general principle of "fair use". If you think you can do what's described here outside the USA and claim "fair use", be ready to get sued.

There are occasions when parts of a work still under copyright and trademark may be legally used or copied even without the copyright holder's permission.

Unfortunately, even the courts — which is where disagreements over Fair Use end up if they are sufficiently intractable — are not always sure when those occasions are. Certain uses have been declared "fair"; other uses that may look similar are not.

The technical term from copyright law to refer to something — a book, a song, a motion picture, a computer program, a play, a photo, or anything else we consider art — is "work"; this is one reason we use this term on this very wiki.

According to the U.S. Copyright Office:

The term "sound recording" only includes that particular recording of audio. This would be used for covers of others' songs.

The term "arrangement" only includes the additional parts added to a song. This would be used for remakes of others' songs where the remaker added an intro, an interlude, additional rhythms, etc.

The term "music" entails every sound you ever hear throughout the song.

When someone registers audio with the U.S. Copyright Office, he/she registers said audio as the most encompassing of these three that he/she can honestly claim rights to. The person registering it also retains rights to every lesser level of ownership. (So an "arrangement" covers both the song's "arrangement" and "sound recording," and a "music" covers all three - "music," "arrangement," and "sound recording.")

"Lyrics" are separate from the above, even though you can register them simultaneously (on the same form, in fact). "Lyrics" only entail the words themselves (not the notes of the vocals, not the recording of the vocals - only the words). "Lyrics" is the exact same poetry - it only covers the words on the page. (The notes of the vocals are part of "arrangement" or "music," and the recording of the vocals are part of "sound recording.")

In simple terms, "fair use" is the ability of a third party to use a part of another work without the permission of its copyright owner, and without being guilty of copyright infringement.

The question of how much and what you can borrow as fair use has kept many lawyers and others awake at night, either because they're worried about whether a use of someone else's work is fair or because they're trying to argue that a use of their client's work is not fair.

The stakes are high. If a use is fair, the user owes nothing to the copyright owner, at all. If the use is not fair, it is copyright infringement; penalties can go up to hundreds of thousands of dollars in damages, and copies of the infringing work may be impounded (that is, confiscated) and destroyed. (Cut to video of a steamroller used to run over bootleg DVDs). Even if the infringing work isn't impounded, there won't be any more copies made of it, which may lead to Keep Circulating the Tapes situations.

What the courts examine in determining fair use is what the use is (its "character"), the amount used, and the purpose for its use. A commercial use (as in a story or in an advertisement) is slightly less likely to be considered fair; non-commercial uses generally get more leeway. Also, generally for a use to be fair, it must be only what is necessary to make the point of the intended use. Use too much, and it turns from fair use to infringement.

The typical legitimate types of fair use are:
  • Comment - Showing how a work has certain characteristics. For example, the opening of one song may be similar to another song, and a fair use could include a few seconds from both to show the similarities. But borrowing the entire song would obviously fail a claim of fair use.
  • Criticism - When a review show uses a clip of a movie to show how bad it is, even if the studio did not give the reviewer the clip, the use would be considered fair. Where the clip is used in a review that praises the movie, the studio probably won't sue...
    • There are often YouTube videos where someone takes scenes from a movie to point out errors in the film; such uses would generally be considered fair, especially as the use is not for profit.
    • But the character of the use does matter as much as the amount. See Harper & Row vs. The Nation below. The Nation printed just a short excerpt of a book, but printing it removed any reason to read the book itself... This is one reason studios sometimes won't let critics see a film before the general public can — especially if the studio thinks the critics will hate the work.
  • Scholarly Research - Use of quotes from other works to support one's argument or to show that the arguments made in the other work are wrong, as long as the quotes are properly cited.
  • Parody - Making fun of or ridiculing another work. If the ridicule is strong enough, then it can actually be devastating to the original — but it's still fair.
    • In America, parody all but gets a free pass, and attempts to dispute fair use on parodies are socially frowned on; this has the unintended side effect of encouraging Indecisive Parodies.
    • Also, it is important to note that American courts make a distinction between Parody (that is where the original work is the target of the ridicule) and Satire (where the original work is used to mock something else). While satire can be considered fair use, it is much harder, as the court will analyze whether it was necessary to use the original work, since the satirist could have made their own novel work to get the comedy job done. Thus in Copyright and Trademark law, satire and parody are very distinct terms of art.

There are cautions, which is why lawyers live in luxury. A use in one context might be considered fair in one court and not fair in another. Some uses are always considered fair, but others are borderline cases where sometimes it was called fair and sometimes it wasn't.
Here are some examples:
  • 2 Live Crew recorded a parody of Roy Orbison's "Oh, Pretty Woman" and released it on their album Clean As They Wanna Be despite being refused permission by the copyright owners Acuff-Rose Music to actually do so. In a unanimous decision, the Supreme Court found that parodying copyrighted work, even if the parody is of a commercial nature, is a sufficient defence for fair use. This is why "Weird Al" Yankovic can release so many parodies (but gets permission to stay friendly with artists). It's also the go-to citation for anyone who receives DMCA threats. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)
  • Eveready Battery Co. (as of 2000, Energizer Holdings Inc.) had been running a set of television commercials using its pink bunny to walk through parody commercials of fictional products. Adolph Coors Brewing Co. decided to do a beer commercial in which Leslie Nielsen wore a pink bunny costume, as a parody of Eveready's own parodies. Eveready didn't like this and sued. In deciding that Coors' parody was fair use, the court pointed out that there's no competition between the sale of batteries (or their uses) and the sale of beer. In comparing the Energizer Bunny and a man in a pink rabbit suit, the judge pointed out that "Mr. Nielsen is not a toy..., does not run on batteries, is not 15 inches tall... [and] is not predominantly pink." Eveready Battery Co. v. Adolph Coors Co., 765 F. Supp. 440 (N.D. Ill. 1991).
  • While J.K. Rowling was able to stop a man who was developing an encyclopedia on her Harry Potter series after having creative differences, she was less successful in getting a court in India to stop someone from using a name similar to Harry Potter in his book. She was, however, cleared of an accusation of infringement by another author who supposedly used the term "muggles" to refer to people who are not wizards.
  • West Coast disc jockey Rick Dees asked permission to use part of the song "When Sunny Gets Blue" to lampoon the performance of Johnny Mathis in a parody called "When Sonny Sniffs Glue". The copyright owner, songwriter Marvin Fisher, refused to grant permission, but Dees decided to use about 29 seconds of the song anyway. Fisher sued, arguing that the use was not fair and that the request for permission was evidence that Dees was aware his use was not fair. The court decided that the amount of use was reasonable for parodying Mathis' style, it had no effect on the market value of the underlying song, and asking for permission does not affect the determination as to whether a use is or isn't fair. The decision finding the use to be fair was upheld on appeal. Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986)
  • The Nation magazine used 300 words from President Ford's 30,000-word memoir (the ones about pardoning Nixon... e.g. the part people would be buying the book to read.) in its review of the book. Harper & Row, the book's publisher, felt this use was not fair and sued. The original court agreed, and the U.S. Supreme Court upheld the decision, deciding (among many factors) that while news reporting usually is a strong factor in being fair use, that the magazine is for profit is a factor against this, but mostly that the 300 words represented "the heart" of the work and thus the use was not fair. Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)
  • The Supreme Court declared VCRs—and by extension DVRs—to be fair use (provided that the copies are limited to personal noncommercial use), even though the use is the entire copy of the work, basically because the purpose isn't to deny the copyright owner revenue (the shows are provided to the user either free or as part of their subscription if it's a pay service) and (as stated before) it's for the consumer's personal use and is not being done for commercial purposes. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). (What is ironic now is that Sony is basically on both sides of this issue, since they make video recording devices and operate studios.)

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