What's Fair and What's Not in the Copyright World?

February 2011

Unlike patent law, copyright does not protect the underlying idea. In other words, if you come up with a new method for training workers online, you will not be able to protect that method under copyright law. (The method may or may not be protectable under patent law.) But if you develop a series of online training manuals, then you can protect the content of those manuals under copyright law. Copyright law protects the expression of an idea, that is, the words you use (or photographs you take, artwork you create, etc.) to express your idea.

The test for copyrightability is whether the work--which could be a book, movie, song, painting, sculpture, or even a software program--is original. The test for determining copyright infringement is whether the allegedly infringing work is substantially similar to the copyrighted work. If originality exists, and if infringement is found, then the question becomes: was the defendant's copying of the original work fair? If so, then there is no liability on the part of the defendant.

The doctrine of fair use takes into consideration four factors: the purpose and character of the use (i.e., whether it is commercial or noncommercial), the nature of the work (i.e., on a scale of originality, how original is it?), the amount and substantiality of the portion used in relation to the copyrighted work as a whole (this factor includes both a quantitative and a qualitative assessment), and the effect of the unauthorized copying on the market for or value of the original work. It is not necessary for all four factors to be resolved in the defendant's favor in order for fair use to apply; instead, courts engage in a balancing act that weighs each of these factors.

Regarding the purpose and character of the use, the primary question is whether the use is commercial or noncommercial. Examples of noncommercial uses would include using the work in the classroom for teaching purposes, making a copy of the work for personal research, etc. Many people believe that a noncommercial use of a copyrighted work constitutes fair use, but that is necessarily not the case. The fact that a use is noncommercial is simply one factor that courts consider in determining whether fair use exists.

The second factor takes into consideration the nature of the work and how "original" it is. For example, a compilation of telephone numbers in a phone book (or any other compilation of facts) is not considered particularly original, whereas a highly creative work (like a movie, song, book, etc.) would be on the other end of the spectrum in terms of originality. The more "original" the work, the greater the chance this factor will be held against the defendant. By the same token, if the work is not particularly original, then this factor will weigh in favor of the defendant.

As for the amount and substantiality of the portion used, the issue is not simply what percentage of the work was copied. (Some people believe that if they copy less than 20% of a copyrighted work, or if they copy fewer than 30 seconds of a song, they will not be liable for copyright infringement, but there are no such hard-and-fast rules.) Instead, courts will undertake a qualitative analysis of what portion of the work was copied; for example, if a song has a particularly recognizable refrain, and if that refrain is copied, the court may find that this factor weighs against the defendant even if the refrain constitutes fewer than 30 seconds of the entire song.

The last factor is the effect on the market for or value of the copied work. If the fact that the defendant copied the work without authorization diminishes the market for or value of the copyrighted work (for example, by causing fewer people to purchase authorized copies from the copyright holder), then this factor will be held against the defendant.

In most cases, not all factors will weigh against the plaintiff (copyright owner) or defendant (copier). More typically, some factors will be in the copyright owner's favor, and some factors will be in the copier's favor. For example, the use may have been commercial, a significant portion of the work may have been copied, but the work may not be particularly original, and the copyright owner may not be able to show that there was any impact on the market for or value of his work. In these situations, courts tend to place greater emphasis (but not exclusive emphasis) on the first factor. Generally speaking, criticism, comment, news reporting, teaching, scholarship and research are considered fair use, but clients should consult with a knowledgeable copyright attorney before making any assumptions regarding a particular use.


Amicable photo of Toni

Antoinette M. Tease, P.L.L.C.