Fair Use: § 107

Created by Ashley Pendleton on March 07, 2016 836

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 

Written by Ashley Pendleton on March 07, 2016 0 1225
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Supporting Authority

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569
Link to Supporting Resource

The preamble of a provision of the Copyright Act of 1976 (17 USCS 107) indicates that the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research does not constitute copyright infringement. Moreover, 107 provides that the factors for determining whether a particular use is fair shall include (1) the purpose and character of the use, including whether such use is commercial, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use on the potential market for the copyrighted work. The holder of the copyright in a rock ballad, "Oh, Pretty Woman," filed a copyright infringement suit against a music group, claiming that the group's rap song, "Pretty Woman," infringed the copyright in the ballad. The United States District Court for the Middle District of Tennessee, concluding that the rap song was a parody that made fair use of the original, granted summary judgment for the group (754 F Supp 1150). The United States Court of Appeals for the Sixth Circuit reversed and remanded on the basis of the Court of Appeals' conclusions that (1) the commercial nature of the parody rendered the parody presumptively unfair under 107's first factor, (2) by taking the heart of the original and making it the heart of a new work, the group had qualitatively taken too much of the original under 107's third factor, and (3) harm to the market for purposes of 107's fourth factor had been established by a presumption attaching to commercial uses (972 F2d 1429).

On certiorari, the United States Supreme Court reversed and remanded. In an opinion by Souter, J., expressing the unanimous view of the court, it was held that the Court of Appeals had erred in basing its judgment on the conclusion that the parody's commercial nature rendered the parody presumptively unfair under 107's first and fourth factors and the conclusion that as a matter of law, the group had copied excessively from the original, because (1) no such evidentiary presumption was available to address either the first or fourth factor, since (a) a presumption that a commercial use was unfair would swallow nearly all the illustrative examples in 107's preamble, which rule could not have been intended by Congress and was not inferable from the common-law cases, and (b) no presumption of market harm from commercial use applied to a case involving something beyond mere duplication for commercial purposes; and (2) the parody was not so insubstantial, as compared to the copying of the lyrics and music, that the third 107 factor had to be resolved as a matter of law against the group.

Kennedy, J., concurring, expressed the view that (1) although it was not certain that the purpose of the rap song made the song a legitimate parody, the Supreme Court's treatment of the remaining 107 factors left room for the District Court to determine on remand that the song was not a fair use; and (2) courts applying the Supreme Court's fair-use analysis must take care to insure that not just any commercial take-off is rationalized, after the fact, as a parody.

Created by Ashley Pendleton on March 02, 2016 0 1426

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17 USCS § 107

  • Notwithstanding the provisions of sections 106 and 106A [17 USCS §§ 106 and 106A], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
    • (1)  the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    • (2)  the nature of the copyrighted work;
    • (3)  the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    • (4)  the effect of the use upon the potential market for or value of the copyrighted work.
  • The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Created by Ashley Pendleton on March 02, 2016 0 1350