260 | THE COPYRIGHT HANDBOOK
The quality of the material you want
The Effect of the Use on the Market
to use must be considered as well as the
for, or Value of, the Prior Work
quantity. The more important it is to the
original work, the less likely is your use a fair The fourth fair use factor is the effect of use. For example, in one famous case, The
the use upon the potential market for, or
Nation magazine obtained a copy of Gerald value, of the copyrighted work. You must Ford’s memoirs prior to their publication.
consider not only the harm caused by your
The magazine published an article about
act of copying, but whether similar copying
the memoirs in which only 300 words
by others would have a substantial adverse
from Ford’s 200,000-word manuscript
impact on the potential market for the
were quoted verbatim. The Supreme Court
original work.
held that this was not a fair use because
Since fair use is an affirmative defense
the material quoted, dealing with the
to copyright infringement, it is up to the
Nixon pardon, was the “heart of the book
defendant—the copier—in an infringement
… the most interesting and moving parts
case to show there is no harm to the potential
of the entire manuscript.” ( Harper & Row
market for the original work. This can
Publishers, Inc. v. Nation Enterprises, 471
be difficult. The more transformative the
U.S. 539 (1985).)
subsequent work—the more it differs from the
An author of a work consisting primarily original and is aimed at a different market—
of a prior work—particularly the heart of
the less likely will it be deemed to adversely
the work, with little added or changed—
affect the potential market for the original.
will likely not be successful in invoking the
But if you want to use an author’s
fair use privilege.
protected expression in a work of your own
that is similar to the prior work and aimed
at the same market, your intended use will
TIP
probably be deemed to adversely affect the
Although there is no legally estab-
potential market for the prior work. This
lished word limit for fair use, many publishers
weighs against a finding of fair use.
act as if there were one and require their authors
EXAMPLE 1: Nick, a golf pro, writes a book on
to obtain permission to quote more than a
how to play golf. Not a good putter himself,
specified number of words (ranging from 100
he copies the chapter on putting from a how-
to 1,000 words). You should always ask your
to golf book written by Lee Trevino (one of
publisher about such requirements and seek
the greatest putters in golf history). Since Nick
to obtain any necessary permissions as soon as
intends for his book to compete with and
possible. See Chapter 14 for more information.
hopeful y supplant Trevino’s, this use would
likely not be a fair use, particularly given the
CHAPTER 10 | USING OTHER AUTHORS’ WORDS | 261
large amount of copying. In effect, Nick is
EXAMPLE: Wil iam writes a play about a
trying to use Trevino’s protected expression
love affair between two middle-aged people
to eat into the sales of Trevino’s own book.
in a midwestern town. Both the plot and
dialogue are borrowed liberal y from the
EXAMPLE 2: Ophelia, a historian, writes a
best-selling novel The Bridges of Madison
study of women’s roles in Elizabethan England.
County. Wil iam’s copying from the novel
Working under extreme deadline pressure,
is likely not a fair use. Even though the play
somehow she unconsciously quotes or closely
will likely not affect sales of the novel itself,
paraphrases many important passages in a
it probably would have a negative impact
groundbreaking study of the topic written
on the market for a play based on the novel,
by Horatio ten years before. Ophelia intends
whether by the novelist himself or someone
for her book to compete with and hopeful y
he gave permission to write such a play. In
supplant Horatio’s prior work. Ophelia’s use of
other words, William’s play would negatively
Horatio’s material is likely not a fair use.
impact the market for derivative works based
on The Bridges of Madison County.
EXAMPLE 3: Suzy writes a guide to Social
Security aimed at retirees. She borrows
several charts and graphs from a prior work
Fair Use Online
on the same subject aimed at the same
market. This copying is likely not a fair use.
The fair use privilege applies in the online
digital world just as it does in the offline
analog world. The fair use factors discussed
Effect of use on the market for derivative
above must be applied to any intended
works must be considered
online use. The more transformative the
Since the effect of the use on the potential
use, the more likely the online use will be
market for the prior work must be
considered a fair use.
considered, the effect on the market for
derivative works based on the original
Examples of Fair Use Online
must also be analyzed. As discussed in
detail in Chapter 6, “Adaptations and
We’ve seen above that news reporting,
Compilations,” a derivative work is one
criticism, and comment are all classic
that is based upon or recast from a prior
examples of fair use. Thus, a fair use was
work. One good example of a derivative
found when a nonprofit organization
work is a play or screenplay based on a
posted a newspaper article about police
novel. A finding that a work has a negative
discrimination on its website. The court
impact on the market for derivatives of
reasoned that the nonprofit’s use was
an original work weighs against fair use.
transformative because its purpose was to
262 | THE COPYRIGHT HANDBOOK
educate the public about discrimination
Republic argued that the postings were a fair
issues. ( Righthaven LL v. Jama, No 2:2010-
use because the website’s users were
cv-01322, 2011 WL 1541613 (D. Nev. April. allowed to comment on the news stories, but
22, 2011).) Similarly, a court held it was
the court rejected that stance, ruling that
fair use when a user of an online political
there was little transformative about copying
forum posted a five-sentence excerpt from
the entirety of news articles, and the whole-
a newspaper article with a link back to the
sale copying of articles was not necessary
newspaper’s website. The court held that
the use was quantitatively small and did
them. Moreover, posting the articles fulfilled
not cause the newspaper financial harm.
(at least to some extent) demand for the
( Righthaven LLC v. Democratic Underground, original works, diminishing the newspapers’
No. 2:10-cv-01356-RLH (GWF).)
ability to sell and license them. Finally, the
And, in a celebrated case, fair use was
fact that Free Republic posted the articles to
found to apply when someone leaked
help attract donations also weighed against
internal emails from Diebold Election
a finding of fair use. ( Los Angeles Times v.
Systems revealing flaws in Diebold’s
Free Republic, 54 U.S.P.Q.2d 1453, 1455-56
e voting machines, and the emails were
(C.D. Cal. 2000).)
republished on numerous websites. The
There was also no fair use where Scientol-
court declared that “The email archive was ogy critic Dennis Erlich posted the entirety
posted … [to] inform … the public about
of many writings by Scientology founder
the problems associated with Diebold’s
L. Ron Hubbard onto an Internet newsgroup.
electronic voting machines. It is hard to
Although the postings were done for the
imagine a subject the discussion of which
purpose of criticism and comment, the court
could be more in the public interest.”
found that the use was not transformative
( Online Policy Group v. Diebold, 337
because (1) Erlich copied entire works and,
F.Supp.2d 1198 (N.D. Cal. 2004).)
(2) unlike the typical critic, he added little
new expression to them. ( Religious Tech. Ctr.
No Fair Use Found
v. Netcom On-Line Communications Servs.,
Inc. , 923 F. Supp. 1231 (N.D. Cal. 1995).)
On the other hand, there was no fair use
where a website called Free Republic posted What About Social Media?
verbatim complete copies of news stories
from dozens of news sources, including the
The fact that work of authorship has been
Los Angeles Times and Washington Post. Free placed on a social media platform like
CHAPTER 10 | USING OTHER AUTHORS’ WORDS | 263
Twitter or Facebook does not mean that it
There are no copyright police stationed at
can be freely used, especially for commercial photocopy shops.
purposes. For example, a photographer
Photocopying for commercial purposes
who posted on Twitter photos he took of
or to promote business activities is likely not
the aftermath of the 2010 Haiti earthquake
a fair use, particularly if multiple copies of
successfully sued a news agency for
a work are made. For example, a group of
copyright infringement, after the agency
seven major publishers obtained a $510,000
copied and distributed the photos to
judgment against one duplicating business
subscribers without permission. The
for copying excerpts from books without
photographer was awarded $1.2 million
permission, compiling them into “course
in damages. ( Agence France Press v. Morel,
packets,” and sel ing them to col ege students.
769 F.Supp.2d 295 (2011).) Although the
( Basic Books, Inc. v. Kinko’s Graphics Corp.,
fair use defense was not raised in this case,
758 F.Supp. 1522 (S.D. N.Y. 1991).)
the use of the photos very likely did not
What about photocopying scientific
constitute a fair use because (1) the entire
and technical journal articles and similar
works were used, (2) the use was commercial, materials for research purposes? Also, not a (3) the use was not transformative, and
fair use. Example: Employee researchers of
(4) the use had a clearly harmful effect on
the oil giant Texaco systematically copied
the potential market for licensing the photos. entire technical and scientific journal
articles, to save the material for research
purposes. The journals sued Texaco for
Fair Use and the
copyright infringement and the court
Photocopy Machine
held that this type of wholesale archival
Individual photocopying of one copy of
copying was not a fair use because it was
an article from a magazine or periodical or
not transformative or productive—that is,
small portion of a book for personal use—
Texaco’s employees were just making exact
that is, not as part of a business activity—
copies of articles, not creating anything
probably constitutes a fair use.
new. The copying was done simply to
Making multiple copies of anything,
save Texaco money on subscriptions and
or copying entire books or other works
licensing fees. The court said that Texaco
you get from libraries or friends to avoid
should either obtain licenses from the
having to buy them, probably isn’t a fair
Copyright Clearance Center or similar
use. However, there is no practical way for
organization, or buy more subscriptions for
copyright owners to enforce their copyright its researchers. ( American Geophysical Union rights against individual photocopiers.
v. Texaco, Inc. , 37 F.2d 881 (2d Cir. 1994).)
264 | THE COPYRIGHT HANDBOOK
Copying by Teachers
no more than one chapter or its equivalent in
a book of more than ten chapters. ( Cambridge
Copying by teachers for scholarly or
University Press v. Becker, 863 F.Supp. 2d 1190
classroom use is generally favored as a
(N.D. Ga. 2012).)
fair use because it is done for nonprofit
educational purposes. However, if taken
The guidelines may be summarized as
to extremes, such copying would destroy
follows.
the market for educational materials. In an
effort to strike a balance among the needs
Single copies
of teachers and publishers and authors, a set
of guidelines for teacher photocopying was
A teacher may make one copy of the
agreed upon by representatives of author-
following items for purposes of scholarly
publisher and educational organizations and research, or use in teaching or preparing to unofficially endorsed by the congressional
teach a class:
committee that drafted the Copyright Act.
• a chapter from a book (but not an
Technically, the guidelines do not have
entire book)
the force of law, but it is highly unlikely
• an article from a periodical or
that any court would hold that copying
newspaper
by a teacher within the guidelines did not
• a short story, short essay, or short
constitute a fair use.
poem, whether or not from a collective
work, such as an anthology, and
• a chart, graph, diagram, drawing,
TIP
cartoon, or pi
cture from a book,
The guidelines establish minimum
periodical, or newspaper.
fair use standards for teachers. It is possible
that teacher photocopying that exceeds the
Multiple copies for classroom use
guidelines could be considered a fair use as wel .
A teacher may also make multiple copies of
In one case, for example, a court held that 70
the items listed above (not to exceed more
instances of copying copyrighted books and
than one copy per pupil in the course)
posting them on a university’s e-reserve system
provided that the following are true:
were not infringing because of fair use and for
• The amount of material copied is
other reasons. The court viewed the Copyright
sufficiently brief.
Office’s 1976 Guidelines for educational fair use
• The copying is done spontaneously.
as a minimum, not a maximum standard. The
• The cumulative effect test is met.
court then proposed its own fair use standard:
• Each copy includes a notice of
10% of a book with fewer than ten chapters, or
copyright.
of a book that is not divided into chapters, or
CHAPTER 10 | USING OTHER AUTHORS’ WORDS | 265
Brevity
administrators, the board of education, or
There are strict numerical limits as to how
any other higher authority. Moreover, the
many words may be copied, but these limits idea to make the copies and their actual
may be stretched so that copies don’t end
classroom use must be so close together in
with an unfinished line of a poem or an
time that it would be unreasonable to expect
unfinished prose paragraph.
a timely reply to a request for permission
Poetry. Multiple copies may be made of a
from the publisher or copyright owner.
completed poem of 250 words or less that is
printed on not more than two pages; up to
250 words may be copied from longer poems.
TIP
Prose. Multiple copies may be made of a
It usually takes at least a month or
complete article, story, or essay of less than
two for a publisher to respond to a permission
2,500 words; excerpts up to 1,000 words or request. Thus, the spontaneity requirement will 10% of the work, whichever is less, may be
probably be met where the copies are used in
copied from longer works (but 500 words
class less than a month after they are made. But,
may be copied from works that are between of course, this rule wouldn’t apply if the material 2,500 and 4,999 words long).
The Copyright Handbook Page 46