Fair Use Quiz Results
August 23, 2006 12:00 am
Fair Use The US Copyright Law defines Fair Use of a copyrighted as use for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, research, and parody. Even the documentation on the US Copyright Office website states that there are no clear cut rules to Fair Use. Each Fair Use case is weighed heavily on four (4) main factors. The courts use the four (4) factors to help determine whether a questionable item used another copyright item fairly. Sometimes other factors may be considered in addition to the basic four, but these four are always considered. 1) Purpose of the item ? Is it used for teaching, non-profit, research, criticism, comment, news report, restricted access, transformative use, or parody? 2) Nature of the item ? Is the work published, factual, or educational? 3) Amount of the item ? Is the amount used of original limited, insignificant to original, and/or quantity used required for education? 4) Effect of the item ? Is the use lawfully acquired or permitted, how many copies were made, is there an effect on the market, are similar product(s) on market by copyright holder, are there license rights and is use allowed in license 1. Years ago, I made a brush using less than 1% of someone else?s image which I can not find now. Is it ?Fair Use? since it?s only in small amounts on a texture I?m making that is not for sale. I?ll just offer it in the Free Stuff area. (59/140, 42.1%) It is Fair Use (81/140, 57.9%) It is not Fair Use Answer: It is not Fair Use. Purpose: There is commercial acitivity with distribution (even though it?s being given away and not sold). This factor leans against fair use. Nature: There is no educational benefit. This factor leans against fair use. Amount: There is only a small amount of the original. This factor leans towards fair use. Effect: I did not purchase the image, therefore, there is no license to state whether it can be used. I did not ask for permission. Multiple copies would be distributed on the web, and there is repeated, long term use. This factor leans against fair use. 2. All NASA Photos are public domain and can be used however I choose. (54/140, 38.6%) Is Fair Use (86/140, 61.4%) Is not Fair Use Answer: It is Fair Use. The policy of the Jet Propulsion Laboratory (division of NASA) is that the images on their site may be used for any purpose without permission. Since permission is granted to use however one wishes, there would be a need to determine other factors. http://www.jpl.nasa.gov/images/policy/index.cfm 3. There are 4 areas to consider in Fair Use. (108/140, 77.1%) True (32/140, 22.9%) False Answer: True; Purpose, Nature, Amount & Effect. 4. Again, this question is based on an actual Fair Use case in 1998, but people and companies have been changed. I create a trivia game on "The Flintstones". I'm sued by the company that created the cartoon. What do you think the judge decided? (25/140, 17.9%) Is Fair Use (115/140, 82.1%) Is not Fair Use Answer: It is not Fair Use. Purpose: The game was created for commercial activity, it?s for profit, and it is entertainment. This factor leans against fair use. Nature: The television show is fictional-not fact. This factor leans against fair use. Amount: Although the wrong answers are original, the questions and correct answers were from the copyrighted cartoon. This leans against fair use. Effect: There was no proof of current market harm, the game could harm future market values of products the copyright holder may create. This factor leans against fair use. 5. This one is based again on an actual Fair Use case in 1998 with changes. I wrote a song about youth abstinence. An educational channel used 45 seconds of it in a special about youth abstinence without my permission. The broadcaster also sold videotape copies of the program to educational institutions "for educational use only." The court decided: (47/140, 33.6%) It is Fair Use. (93/140, 66.4%) It is not Fair Use. Answer: It is Fair Use, but very borderline. A court in a different state may have decided against fair use. Purpose: It was for educational purposes. Sales of tape were limited and the station did not earn a profit. The use of the music faintly in the background was also "transformative." Nature: As a musical composition, the court found the work to be highly creative. This factor against fair use. Amount: The amount used was neither "qualitatively" nor "quantitatively" excessive?it was limited.. The use did not include any lyrics of the original song and only a portion of the original music, and then only as background. The part used was not the ?heart of the work?. Effect: No realistic harm to the market for the song. The plaintiff presented no evidence of lost sales, and the court concluded that the brief excerpts as background music "cannot be said to be a substitution for the musical composition." The court acknowledged that any use is a "potential" loss of a sale or revenue, but the only market important in this analysis is the market that the copyright owner is realistically exploiting: "The market niche that the Defendants have filled is the educational videotape niche. The Plaintiff had no interest in occupying the educational niche." 6. Case Study: A company that makes educational motion pictures and videos for-profit sued several public school districts that recorded the programs when they were broadcast on public TV stations. Then the school districts sent copies to the middle schools in their district. The court decided: (63/140, 45.0%) It is Fair Use. (77/140, 55.0%) It is not Fair Use. Answer: It is not Fair Use. Purpose: Was used educational purpose. This leans towards fair use. Nature: They were highly creative, commercial products. The copyright holder?s core business is sales to educational institutions. Amount: The entire work was copied and retained for repetitive, long term use. Effect: The copies directly competed with the plaintiff's market for selling or licensing copies to the schools. 7. Case Study: I take a photograph of a downtown Nashville. I alter it in Photoshop to make my own ?enhanced? version and post it on my website. I find several months later a local travel company that is promoting Nashville to large convention groups has used my entire image as a small part of an image they created to put in their brochures. What do you think the judge decided? (17/140, 12.1%) It is Fair Use. (123/140, 87.9%) It is not Fair Use. Answer: It is not Fair Use. Purpose: The finished product was for a commercial purpose. There was profit from the use?sole use was marketing. Also, there was no credit given to the original author. Nature: The image copied was a computer-enhanced photograph, with numerous original elements of lighting, perspective, shading, and subject orientation. Amount: The entire image was scanned. Effect: The brouchure could have a great effect upon the copyright holder?s ability to sell it commercial.