SPLC Guide to Fair Use

Legal

Let’s begin with the general rule for using copyrighted works:

Unless you created or already own the work (or have some other clearly established right to use it, such as a Creative Commons license, or the work is in public domain, etc.), you must obtain permission from the copyright owner to use it.

Except…

Let’s talk about fair use.

First, do any of these examples sound familiar?

You’re the editor of your school yearbook, and this year you’ve decided to include a spread on celebrity look-alikes. You track down students and faculty members in your school who look like celebrities and snap their pictures. Now, you just need to find pictures of the celebrities they resemble. Can you pair your photos with celebrity photos you found on the Internet without getting permission from the owner of the photos?

Or, let’s say you’re the music editor for your school’s cable TV show, and you’re producing a review of a popular singer’s latest single. Can you include a clip from the song’s music video as part of your review?

To answer these questions, you need to know about copyright law — which, as the general rule says — generally requires that you obtain permission before using work created or owned by someone else — and specifically about the scope of an exception to that general rule called “fair use.” This guide will explain the basics of fair use and will include examples of some fair use situations that commonly arise in the student media context.

What is fair use?

To understand fair use, you first need a basic grasp of copyright. Copyright provides protection to original works of authorship by allowing the owners of original, creative works to protect their work product against unauthorized use by others. Fair use is an exception to copyright’s general rule that you need advance permission from the owner before you can use a copyrighted work. Fair use is oftenused as a defense to a claim of copyright infringement: if someone accuses you of violating their copyright, you may be able to argue that your use qualifies as a fair use to show that you did not break the law.

Fair use works by allowing non-owners of a copyrighted work to use that work without obtaining advance permission from the copyright holder. Although the safest way to use copyrighted material is to ask for advance permission, in some circumstances it can be difficult, time-consuming and/or expensive. Fair use recognizes this difficulty and is an attempt to strike a balance between:

  1. Protecting a copyright owner’s right to control her work and be adequately rewarded for her efforts
  2. Society’s need for readily accessible information.

How does fair use work?

Fair use is an important concept for student media to be aware as it allows for non-authorized use of copyrighted material in limited circumstances. Unfortunately, fair use is not a clear-cut area of copyright law and there are few black-and-white rules for its application. Courts typically decide the question of whether a use qualifies as a fair use on a case-by-case basis, drawing conclusions based on specific facts. Nevertheless, some guidelines do exist to help us determine whether fair use will apply to a given situation. Specifically, courts consider four factors when making a fair use determination:

— The purpose and character of the use: A use is more likely to be considered a fair use if it is used for purposes such as criticism, commentary, news reporting, teaching, scholarship and research. One of the purposes most likely to be invoked by student journalists is news reporting; however, courts have limited the situations in which news reporting can trigger a fair use defense. Forexample, in one Ninth Circuit case, the Los Angeles News Service (LANS) sued alocal television station for using an excerpt of its copyrighted videotape of a beating in Los Angeles.1 The television station claimed that its usewas fair use because the story was newsworthy and in the public interest. The court held, however, that because the station had other means of obtaining coverage, it could not claim fair use based solely on the defense that it was using the tape for news reporting purposes, even though the alternative coverage may not have been as good.

This ruling should serve as a caution for students invoking fair use for news reporting as courts generally only find fair use in this situation when the work itself is newsworthy and its use is necessary to tell a very timely news story, with no time to get permission or seek alternate sources. For example, if questions had been raised about how LANS acquired the videotape (perhaps allegations had been made that the beating had been staged by the LANS’ news crew), the TV station’s use of an excerpt from the tape to illustrate its story about the controversy would more likely be considered a fair use since the videotape itself would be the news. In the actual case, however, one news media organization simply took the work of another news organization as part of its regular coverage of news events. Were thisregularly permitted, news organizations would have little incentive to pay news crews to pursue stories and gather their own material, which would likely hurt rather than help society’s long-term interest in staying informed.

More generally, non-commercial uses (for example, using a clip from a school play as part of a school TV news show) are more likely to be considered fair use than uses for commercial purposes (for example, selling copies of the taped play to parents). Yet, even a non-commercial use may still be found to be infringing basedon the other factors described below.

A use is also more likely to be considered a fair use if it somehow transforms the original work by changing its purpose, character, meaning or message. In other words, the new use must add something new to the original work to qualify as a“transformative use.” For example, a court found that a “transformative use” had occurred when an internet service provider (“ISP”) converted photographer Leslie Kelly’s images into “thumbnails” for use on its search engine.2 Kelly sued because, although the images were much smaller and had a much lower resolution, they were exact replicas of his photos. The Ninth Circuit concluded that the ISP’s use was transformative because it served an entirely different function from the original images: although Kelly’s images were highly artistic, the ISP’s thumbnails were designed simply to help improve access to images on the Internet. The court recognized that because the thumbnails had such a low resolution, users were unlikely to try to enlarge them and use them as art. Thus, the court concluded that because the thumbnails served a different purpose than the original photos, the ISP had transformed the original work.3

— The nature of the copyrighted work: Facts are not protected by copyright. Thus, uses of works that contain mostly facts, such as biographies or maps, are more likely to be considered fair use. In contrast, uses of more creativeor artistic works, such as novels, photos or songs, are less likely to be considered fair use.

— The amount and substantiality of the portion used in relation to the original work: For a use to qualify as fair use, no more of the original work than necessary must be used. This factor has both quantitative and qualitative aspects. For example, if you had taken a quote from a book, the court would look both at how many words out of the entire book you took and at whether what you took was the most important part of the book.

In 1985, the Supreme Court highlighted this factor in Harper & Row v. Nation Enterprises. In that case, The Nation magazine reproduced a portion of President Gerald Ford’s unpublished memoirs.4Time magazine had previously paid for exclusive excerpts from the memoirs, but after The Nation’s article ran, Time canceled its article and refused to pay the memoir’s copyright holders. The copyright holders sued The Nation, and the Court found that even though The Nation had only copied a small portion of the 500-page book — about 300-400 words — the quotes it took were some of the most interesting and important parts of thebook. For this reason, the Court concluded that the amount and substantiality factor of the fair use test weighed against a fair use finding.

— The effect of the use on the potential market for the original work: This last factor is probably the most important one. In evaluating a fair use claim, courts ask whether consumers would be willing to buy the new use as a substitute for theoriginal work. If consumers would substitute the new work for the original, the use will probably not qualify as fair.5

Two cases help to illustrate this factor. In the first, artist Earl Jackson sued themovie production studio Warner Brothers for copyright infringement after the studio used two of Jackson’s copyrighted paintings in the film Made in America as part of the set.6 A federal district court in Michigan foundthat Warner Brothers’ limited use of the paintings was a fair use because the movie did not serve as a substitute for purchasing the original paintings. Since the paintings were only used as props in the movie and did not harm Jackson’s sales, the court concluded that the use was fair.

In the second case, New Line Cinema sued a recording company called Zomba after it released a music video based on the film series “Nightmare on Elm Street.”7 A New York district court found that Zomba hadcreated the video so that it could compete directly with New Line and that, if the video were released, it would be likely to harm the value of New Line’s copyright. This was particularly true because New Line had been in talks to release its own music video based on the movie. Because Zomba’s video would harm New Line’s current and anticipated uses of its copyrighted work, the court concluded that the video was not a fair use.

Each of the four factors mentioned above plays an important role in the determination of whether a use is a fair use or not. Yet, each of these factors also turns on the facts of each case. The fact-specific nature of a fair use inquiry makes it difficult to say for certain whether a use will be considered “fair” or not or to draw bright line rules about the limits of fair use.8

Parody and fair use

Including a parody in your student publication can be a great way to get some laughs and perk reader interest. Parody, however, necessarily requires borrowing material from an original source. If you use a parody in your work, can you claim fair use?

Thankfully, the answer is yes, although there are some conditions you’ll need to comply with. First, to qualify as a parody, the work must mimic the original work rather than something else. For example, you can’t rely on the fair use exception to create a parody using Dr. Seuss’s “Cat in the Hat” story to poke fun at some current news event that has nothing to do with Dr. Seuss or his work.9 Courts also apply the same fair use factors described aboveto parody, with a few caveats. For example, the parody must be obvious: the audience should not have to struggle to figure out what is being made fun of.

In addition to being obvious, the parody must take no more of the original than necessary to make its point. For example, in one case, an adult “counter-culture” comic book publisher used Disney characters in its books, and Disney sued.10 The book publisher asserted fair use as a defense. The Ninth Circuit found, however, that because the Disney cartoons were copied in their entirety, the publisher took more than what was necessary to make a parody, even though he had added other features to the characters, depicting them as insects orhumans, to distinguish them from the original works.

Finally, a parody cannot pose a direct threat to the market for the original work. For example, in another Ninth Circuit case, a popular disc jockey used a portion of another’s song “When Sunny Gets Blue” in a parody that he titled “When Sonny Sniffs Glue,” and claimed fair use as a defense when he was sued.11 The court found that even though the use was for a commercial purpose because the producer intended to make a profit from the song, the use was also intended to comment on the original work. After examining both songs, the court determined that they did not fulfill the same public demand. Therefore, the court concluded that the parody was no threat to the market for the original work. Other courts, including the U.S. Supreme Court, have determined that making money on parody, taken by itself, does not bar the parody from qualifying as a fair use.12

Common fair use situations and questions

Because fair use can be a tricky area of copyright law, questions frequently arise about how it can be utilized. Some of the most common fair use questions wehear at the Student Press Law Center are examined below:

Q: Can I use a picture of a CD to illustrate a music review in my student newspaper?

A: The four-factor fair use test says that this use is probably going to be okay. To begin with, the purpose of this use would be to help you comment on and criticize the CD. The second and third factors—the nature of the work and the amount taken—would work against you, because CD cover designs are considered highly artistic and you would be using the entire cover. Yet, the most important factor, market effect, would probably be in your favor as it’s unlikely that a market exists for selling CD cover images to reviewers. You can make your fair use argument even stronger by shrinking the image and reproducing it in black-and-white.13 Finally, if you have the CD available and can creativelyshoot it yourself rather than pulling a picture off of the Internet, that will always be preferable to taking someone else’s picture for your use.

Q: Can I use a photo of a major news event scanned from another magazine to illustrate our school newspaper’s story about the event?

A: There are very limited circumstances in which you can do this. Although your purpose here would be news reporting, courts tend to construe this purpose narrowly, finding fair use only when the image itself is the news and the use of the image is necessary to tell a very timely news story. For example, you may also be able to claim fair use in scanning a full page from the magazine that includes the news photo in context, reducing its size, and using the image to illustrate a story about the media coverage of a particular event. Most other routine news reporting uses, however, would not be considered fair use and you need to get permission from the source before using the images. And of course, if you are claiming fair use for one of these limited purposes, you still must always give credit to the source of the photo.

Q: Can I use a recent pop song as background music for a feature story on our school TV station?

A: Not without permission or purchase of the appropriate license. While you could use a short clip of the song, for example, as part of a bona fide music review of the CD from which it comes, using the song solely as background music would not qualify as fair use. For more information, see the SPLC’s Guide to Music Licensing for Broadcasting and Webcasting.14

Q: Can I claim fair use to air 15-20 seconds of a recent pop song as a segment intro/outro for a program on our school radio station?

A: No, for the same reasons mentioned above.

Q: Can I reprint an infographic published in another newspaper, giving credit to that paper as the source?

A: Probably not. While it is true that copyright does not protect facts, if you want to use those facts in image form, you should have someone on your staff create a graphic rather than taking the work of someone else.

Q: Can I use a cartoon character on my yearbook cover without getting permission?

A: If the character’s copyright remains in force (and if the character was created after 1923, you must assume it is until you determine otherwise), the answer to this question is no. While you may be using this character for a non-commercial purpose, the cartoon’s creative nature and the fact that you’d be using the whole character would weigh against a fair use finding. Also, a strong market exists for this use that would be harmed if you were able to use the work for free: owners of cartoon characters make lots of money by licensing their works for various uses. The bottom line is that if you want to feature a cartoon character in your publication, you generally must get permission.

Q: Can I use a small image of a popular cartoon character to illustrate a bona fide news survey in our yearbook that found the character to be the favorite among students at my school?

A: Probably. As long as the survey legitimately attempted to measure student interest and as long as you use a small thumbnail-sized image alongside the survey results, this would likely qualify as fair use.15

Q: Can I allow a parent to buy a yearbook ad and include stanzas from a recently published poem in the ad?

A: Probably not. First, this use does not easily fit within the traditionally recognized fair use categories such as news reporting, commentary, critique, research, etc. Also, the purpose of the use would be commercial, since the ad helps to finance the yearbook. A poem is a highly creative work, so the second factor also weighs against a fair use finding. Although the amount taken would likely be short, you also need to evaluate whether what was taken was the most important part of the work. Finally, it can be difficult to determine the impact on the market because you can’t be sure how the court will define the market in this particular case. For example, the use would probably not be a substitute for buying a complete copy of the poem, but it may impact the market for poem excerpts, which, for example, are frequently sold to greeting card companies. If there is sufficient lead time, you can encourage the parents/advertiser to obtain and provide you with written permission from the copyright owner to use the work. And as always, be sure to give credit to the author in the ad.

Another alternative is to suggest that they use a poem that is in the public domain. While many famous songs are still protected, the copyrights on many famous poems have expired and lapsed into the public domain. If you’re using a poem (or any work) that is in the public domain, you don’t need to obtain permission from anyone, since the work is no longer protected by copyright. This chart from Cornell University can help you determine whether the work you want to use is in the public domain.

Q: Can I use movie quotes throughout my yearbook and give my yearbook a movie title in order to go along with our yearbook’s movie theme this year?

A: Maybe — but you must do it the right way. Copyright does not protect titles, short phrases or slogans, so you can use the “bare” words as your yearbook title,although you should avoid using the same design for the words as that used toadvertise the movie. You also want to avoid all other references to the movie (so no cast photos, still shots, or lists of characters). Movie quotes aremore of a gray area. Even though short phrases don’t qualify for copyright protection, scripts and dialogue do, so you’ll need to obtain permission to use anything more than a short phrase. In terms of using short phrases, you still need to proceed with caution because even if you are using only a single line, that line may be the most recognizable parts of the movie. (Think: “May the Force be with you.”) If you use a quote, keep it as short as possible and avoid quoting long chunks of the script or dialogue between two or more characters. Keep in mind that the more distinctively creative your use of the quotes is, and the more you add independent value to the work (such as design elements), the better off you’ll be.

Q: Can I take one or two still images from a movie’s official Web site to illustrate a movie review in a student newspaper?

A: Probably. The purpose of the use here would be to aid in criticism and commentary of the movie, which could weigh in favor of fair use. The amount taken of the work – a frame or two from a full length film – would probably weigh in favor of fair use, but a court might consider the photo a separate copyrighted work and decide that taking the entire photo weighs against fair use, though you could probably minimize your risk by shrinking the image’s size and resolution (and perhaps even reproducing it in black and white) The effect on the market would probably weigh in favor of a finding of fair use, as movie studios routinely provide such photos for free for the very purpose of illustrating reviews. If you do make such a use, be sure to give credit to the movie studio for the photo.

Note, however, that unlike still images from the movie, it would not be a fair use to illustrate the review with a candid photo taken from a gossip magazine that shows one of the movie’s stars walking down a Los Angeles street. That photo has nothing to do with the movie and is not being used for the purpose of commenting or criticizing the work itself.

Q: Can I use celebrity photos for my celebrity look-alike feature?

A: No. Even though the purpose of your use would be non-commercial, the character of your use would weigh against you since your use doesn’t fall into any of the typical fair use categories, such as news reporting, commentary or criticism. Additionally, celebrity photos, like most photographs, are highly artistic works, so the second factor would not work in your favor. Assessing the third factor, even if you cropped the photos to only the celebrities’ faces, you may still be found to be infringing since the part of the photo you used arguably constitutes the most important part of the photo. And finally, just like with cartoon characters above, people who photograph celebrities typically make a good deal of money from licensing these photos for various uses. Because there is a market for these licenses, this factor weighs against a fair use finding.

Resources

The following is a list of resources available to student journalists on the subject of fair use. This list is not intended to be comprehensive; rather, it is meant to give students a starting point for further research on the subject of fair use.

Tips and Guides

 

Sources for content

  • The MCT Campus High School News Service, run by the American Society of News Editors, provides stories, photos, graphics and Web content to high schools in exchange for a one-time, lifetime charge of $100.
  • Looking at federal government Web sites can sometimes be a good option for finding images. Material created by federal employees is not subject to copyright protection. Congress, the White House and most federal agencies maintain photo libraries on their sites where you can choose images you want. You’ll still want to attribute the material to its source, but you don’t need to ask for permission to use the material.
  • Nonprofit student media in particular may be able to take advantage of online resources operating under a Creative Commons licensing system. Creative Commons was established to create a more flexible copyright model, replacing “all rights reserved” with “some rights reserved”. For example, an owner using a Creative Commons license — rather than traditional copyright — will often allow others to use their work without permission as long as it is for noncommercial purposes and proper credit is given. There are hundreds of projects powered withCreative Commons licenses and the terms of each Creative Commons license canvary, but popular Web-based resources operating under the Creative Commons model include: Wikipedia, Flickr (photos), Jameno (music), blip.tv (video) and some material on the cable news network Al Jazeera. A full directory of Creative Commons projects can be found here.
  • Students often ask about using maps in their work. Virtually all maps (except for those published in some U.S. government publications) are subject to copyright. One good resource for maps is Google, which has detailed guidelines about how you can use their maps and what you need to do in order to obtain permission for any use that Google does not consider acceptable. You can find more information about these guidelines here.

Endnotes

  1. Los Angeles News Serv. v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997).
  2. Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003).
  3. Cf. MCA, Inc. v. Wilson, 677 F.2d 180 (2d Cir. 1981) (defendants’ use of plaintiff’s copyrighted song was not a fair use and not transformative when defendants plagiarized the song, substituted their own lyrics and performed song for a commercial purpose).
  4. Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539 (1985).
  5. Cf. Kelly, 336 F.3d at 821 (concluding that thumbnails could not be a substitute for original works because thumbnails lost clarity when enlarged).
  6. Jackson v. Warner Bros., 993 F. Supp. 585 (E.D. Mich. 1997).
  7. New Line Cinema Corp. v. Bertlesman Music Group, Inc., 693 F. Supp. 1517 (S.D.N.Y. 1988).
  8. See, for example, Nunez v. Caribbean Int’l News Corp., 235 F.3d 18 (1st Cir. 2000) (concluding that fair use existed because photos were particularly newsworthy, had been acquired in good faith, and had already been previously disseminated); Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (publisher’s use of photos from concert posters and tickets was fair use because use was transformative and publishers did not exploit images’ expressive value); Fitzgerald v. CBS Broad, Inc., 491 F. Supp. 2d 177 (D. Mass. 2007) (finding that CBS’ use of photos in broadcast was not fair use because use was not transformative, was commercial and preserved the photos’ essential meaning and because market for photos existed, as demonstrated by media outlets repeatedly using the photos in the same way CBS used them); Zomba Enters. v. Panorama Records, Inc., 491 F.3d 574 (6th Cir. 2007) (finding that karaoke manufacturer’s use of songs was commercial and infringing because songs were copied in their entirety); Higgins v. Detroit Educ. TV Found., 4 F. Supp. 2d 701 (E.D. Mich. 1998) (finding that television station’s use of song as background music was fair use because program was educational and use was transformative and insubstantial, having no effect on the potential market for the song).
  9. Dr. Seuss Enterprises v. Penguin Books, 109 F.3d 1394 (9th Cir. 1997)(finding author’s book, The Cat NOT in the Hat! A Parody by Dr. Juice, which mimicked the style of a Dr. Seuss book while re-telling the facts of the O.J. Simpson murder trial, was not fair use.)
  10. Walt Disney Prods. v. Air Pirates, 581 F.2d 751 (9th Cir. 1978).
  11. Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).
  12. See, for example, Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994); Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (S.D.N.Y. 1980).
  13. See e.g., Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006)(finding it was a fair use to reproduce Grateful Dead concert posters within a book and focusing on the fact that the posters were shrunk to thumbnail size and used within the context of a timeline.)
  14. http://www.splc.org/knowyourrights/legalresearch.asp?id=112
  15. For more information, see “How to include Bart in your book,” It’s the Law, National Scholastic Press Association (April 30, 2007). http://studentpressblogs.org/nspa/?p=197 (last viewed March 22, 2011).