Frequently Asked Questions About Copyright

Part 2 - Copyright Basics

Copyright (c) © 1993, 1994, 2002 Terry Carroll
Last update: September 11, 2002

This article is the second in a series of six articles that contains frequently asked questions (FAQ) with answers relating to copyright law, particularly that of the United States. Please read the disclaimer, below.

FAQ Contents

Part 1: Introduction (including full table of contents)
Part 2: Copyright basics (this part)
Part 3 - Common miscellaneous questions
Part 4 - International aspects
Part 5 - Further copyright resources
Part 6 - Appendix: A note about legal citation form, or, "What's all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?"

Table of Contents, Part 2: Copyright Basics

2.1) What is a copyright?
2.2) What is "public domain?"
2.3) I just wrote a great program/novel/song/whatever. How can I get a copyright on it?
2.4) How long does a copyright last? Does it need to be renewed?
2.5) What advantages are there to registering my work with the Copyright Office?
2.6) How can I register a copyright with the U.S. Copyright Office?
2.7) What advantages are there to including a copyright notice on my work?
2.8) Can I ever use a copyrighted work without permission of the copyright holder, or "What is fair use?"
2.9) Fair use - the legal basis of the doctrine

2.1) What is a copyright?

A copyright is a right of intellectual property, whereby authors obtain, for a limited time, certain exclusive rights to their works. In the United States, copyright is exclusively federal law, and derives from the "copyright clause" of the Constitution, Article 1, section 8, clause 8, which provides Congress with the power "to promote science and the useful arts, by securing for limited times to authors ... the exclusive right to their ... writings."

Copyright protects only an author's original expression. It doesn't extend to any ideas, system or factual information that is conveyed in a copyrighted work, and it doesn't extend to any pre-existing material that the author has incorporated into a work. 17 U.S.C. §§ 102(b), 103.

The standard for originality is very low. "Original" in this context means only that the work has its origin in the author. There is no requirement that the work be different from everything that has come before: it need only embody a minimum level of creativity and owe its origin to the author claiming copyright. To use an extreme example, if two poets, each working in total isolation and unaware of one another's work, were to compose identical poems, both of the poems would meet the originality requirement for purposes of the copyright statute. Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 499 U.S. 340, 345-46, 111 S.Ct. 1282, 1287-88 (1991).

In the United States, there are five basic rights are recognized as part of copyright:

  1. the reproductive right: the right to reproduce the work in copies;
  2. the adaptative right: the right to produce derivative works based on the copyrighted work;
  3. the distribution right: the right to distribute copies of the work;
  4. the performance right: the right to perform the copyrighted work publicly;
  5. and
  6. the display right: the right to display the copyrighted work publicly.
17 U.S.C. § 106.

The distribution right also includes an importation right, that is, the right to import copies of the work from aanother country into the United States. 17 U.S.C. § 602

Not all of these rights apply to all types of works. For example, the display right applies to literary, musical, dramatic and choreographic works, pantomimes, and motion pictures and other audiovisual works. It does not apply to sound recordings and to architectural works. In addition, the Digital Performance Right in Sound Recordings Act of 1995, Pub. L. 104-39 [TEXT; PDF] added a "digital performance right," a performance right that applies to sound recordings, but only with respect to digital performances

In addition, U.S. recognizes two more rights, sometimes called "moral rights," on a limited basis:

  1. the attribution right (sometimes called the paternity right): the right of the author to claim authorship of the work and to prevent the use of his or her name as the author of a work he or she did not create;
  2. and
  3. the integrity right: the right of an author to prevent the use of his or her name as the author of a distorted version of the work, to prevent intentional distortion of the work, and to prevent destruction of the work.
17 U.S.C. § 106A.

These two moral rights are technically not part of copyright, and they differ from the five copyright rights in several ways:

Finally, another right that is technically not part of copyright was added in December 1994. This is the right to prevent the unauthorized fixation and trafficking in sound recordings and music videos, and was added as part of the U.S. adoption of the Uruguay Rounds of the General Agreement on Tarriffs and Trade ("GATT"). The right is described in 17 U.S.C. § 1101, added as part of Title V of the Uruguay Round Agreements Act, Pub. L. 103-465 [TEXT; PDF], 108 Stat. 4809, § 512.

The remainder of this FAQ will concentrate on the copyright rights.

These rights are not unbounded, and in the U.S., sections 107 through 121 of the copyright law catalog a series of restrictions on the rights. Some of these restrictions are discussed elsewhere in the FAQ (see, e.g., sections 2.8, 2.9, and 3.7).

And, by the way, many persons erroneously spell it "copywrite," apparently because of the association with written material. Please don't do that. The correct word is "copyright." It derives from an author or publisher's right to the copy (copy here being used in the sense that it is used in the newspaper trade: the text of an article).

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2.2) What is "public domain?"

In contrast to copyright is "public domain." A work in the public domain is one that can be freely used by anyone for any purpose.

It used to be that if a work was published without notice, it lost all copyright, and entered the public domain. That's no longer true, and now public domain is more the exception than the rule.

There are still a number of ways that a work may be public domain.

There is a common belief that if someone infringes a copyright, and the copyright owner does not sue or otherwise put a stop to the infringement, the copyright is lost and the work goes into the public domain. There is some pre-1988 law on this (e.g., Stuff v. E.C. Publications, 342 F.2d 143 (2d Cir., 1965) and Transgo v. Ajac Transmission Parts, 768 F.2d 1001 (9th Cir. 1985)), but it seems to derive mostly from the fact that the copyright holder had acquiesced in the publication of the work without notice back when notice was a requirement. It was the publication without notice, and not the lack of enforcement, that actually worked to put the work in the public domain. This is forfeiture of copyright, not abandonment. Because the notice requirement is now gone from copyright law, these cases don't have much weight today.

I have never been able to find anything that supports the idea that failure to assert a copyright against an infringer can alone lead to placing the work in the public domain. Of course, circumstances may be such that the ability to sue a particular infringer might be waived (e.g., a statute of limitations may expire (see section 3.3), or if the infringer has reasonably relied to his or her detriment on the copyright holder's failure to sue, the doctrine of laches may bar a suit), but that's only with respect to that particular infringer, and does not affect the status of the copyright with respect to others.

Sometimes you'll see a program on the network accompanied by a statement like "This program is public domain. It may be freely distributed, but you may not charge more for it than the cost of the media." Statements like these are contradictory. If the program is public domain, you can do whatever you want with it, including charging whatever you want (although you might not make any sales if the program is available elsewhere for free). In this example, what the programmer really wants to do is to retain the copyright, but provide a non-exclusive license to copy and distribute the work, with a condition on the license that only the cost of the media may be charged for it. In this case, where the programmer has, in two consecutive sentences, both declared the work to be public domain and asserted a copyright in the work, it's unpredictable whether a court would interpret this as abandonment.

If there is any restriction upon the use of the work, even the restriction that it cannot be sold, the work is not public domain. Rather, it's copyrighted, and the restrictions are essentially limitations on a licensee using one or more of the exclusive rights described above. For example, the restriction that a work may only be given away for free is a limitation using the distribution right.

Once a work is in the public domain, whether by expiration of copyright or by expressly being dedicated to the public domain by its copyright holder, it pretty much can never again regain copyrighted status. The sole exception to this is "copyright restoration" provisions added by Title III of the North American Free Trade Agreement ("NAFTA") Implementation Act, Pub. L. 103-182, 107 Stat. 2057, § 334, superseded by Title V of the Uruguay Round Agreements Act, Pub. L. 103-465, 108 Stat. 4809, § 514, codified at 17 U.S.C. § 104A.

Although a full discussion of the NAFTA and URAA copyright restoration is beyond the scope of this FAQ, here's a short summary. The NAFTA provisions were pretty limited, applying only to certain motion pictures from Canada or Mexico, and requiring that the copyright owner apply for restoration. The GATT provisions are much more sweeping.

The URAA provisions apply to most works whose country of origin (other than the United States) is a member of the World Trade Organization ("WTO") and that has entered the public domain due to a failure to comply with conditions that the United States formerly required as a condition of copyright (e.g., the copyright notice requirement or the requirement that the infringed copies be manufactured in the United States or Canada) or due to now-obsolete copyright provisions (e.g. shorter U.S. terms or failure to protect sound recordings prior to 1972). Under the GATT provisions, however, while copyright is automatically restored. However, in order to enforce a restored copyright on persons (called "reliance parties") who began copying relying on the public domain status of the work, the copyright must serve a notice of intent to enforce.

For more information on copyright restoration, see 17 U.S.C. § 104A and Copyright Office Circular 38b, Highlights of Copyright Amendments Contained in the URAA.

Finally, to be completely accurate, there is one pre-NAFTA and pre-URAA instance of a public domain work being placed back into copyright, or at least an attempt to do so. On December 15, 1971, Congress enacted Private Law 92-60, 85 Stat. 857, "An Act for the Relief of Clayton Bion Craig, Arthur P. Wurth, Mrs. Lenore D. Hanks, David E. Sleeper, and DeWitt John." This law purported to restore the copyright in Mary Baker Eddy's Christian Science work "Science and Health with Key to the Scriptures." As far as I know, this is the only attempt, pre-NAFTA and pre-URAA, to restore the copyright in a public domain work. However, the law was later overturned on the ground that it unconstitutionally advanced the position of a particular religion in violation of the Establishment Clause of the First Amendment. See United Christian Scientists, et al. v. Christian Science Board of Directors, First Church of Christ, Scientist, 829 F.2d 1152 (D.C. Cir. 1987).

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2.3) I just wrote a great program/novel/song/whatever. How can I get a copyright on it?

Good news. You already have. In the United States, as in most nations, a work is copyrighted as soon as it is created:

Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

17 U.S.C. § 102(a).

A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

17 U.S.C. § 101.

What this means, in simple terms, is that as soon as you've created your original work, it's copyrighted. Because of the "either directly or with the aid of a machine or device" provision, it doesn't matter whether you've printed it out, or if it's only on your hard drive or floppy disk.

You don't need any special formalities, such as registering the work with the Copyright Office, or providing a copyright notice (notice stopped being a requirement when the U.S. signed the Berne Convention and enacted Berne Convention Implementation Act in 1988; see section 4.1 for more information).

That being said, you might want to register the work and provide a copyright notice anyway. There are certain advantages to doing so (see sections 2.5 and 2.7).

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2.4) How long does a copyright last? Does it need to be renewed?

The law of copyright duration has undergone many twists and turns. There have been several major changes in copyright duration law that contribute to this complication: So while the law at any one time has always been pretty simple, the cumulative effect of the changes have made the deceptively simple question "how long does a copyright last?" quite complicated to answer.

Regardless of the scheme used to compute duration, under 17 U.S.C. § 305, copyrights always expire on December 31 of the expiration year; so at least we only have to worry about dates on a year-by-year basis, not down top the actual date within the year.

With these concerns in mind, here's a short (and, I admit, slightly oversimplified) analysis of copyright duration.

Works created 1978 or later
Generally, for works created in 1978 or later, a copyright lasts for seventy years beyond the life of the work's author, after which it lapses into public domain. 17 U.S.C. § 302(a). If the work is prepared by two or more authors (a "joint work"), its copyright lasts for fifty years after the last surviving author dies. 17 U.S.C. § 302(b). For anonymous and pseudonymous works, and for works made for hire, copyright exists for 120 years from the date of creation, or 95 years from the date of first publication, whichever comes first. 17 U.S.C. § 302(c). No renewal is necessary or permitted.

Why 1978? Because January 1, 1978 is the date on which the Copyright Act of 1976 took effect, and that law changed the rules from a system of figuring multiple terms based on date of publication to the single-term system described here.

Note that this is referring only to the copyright rights. For works to which the moral rights (the attribution right and integrity right, see section 2.1), those rights endure only for the lifetime of the author. 17 U.S.C. § 106A(d).

Works published between 1964 and 1977
Prior to 1977, copyright duration was based on the publication date. For works published in the years 1964 through 1977, copyright lasts for 95 years from date of publication. 17 U.S.C. § 304(a). There's no need for a copyright renewal to have been filed with the Copyright Office.

Why 1964 and 1977?

Well, the year 1964 comes from the combination of the initial 28-year term and the fact that renewal was made optional in June 1992 by P.L. 102-307, 106 Stat. 264. Before 1992, a copyright holder was required to renew a copyright after 28 years, otherwise the work went into the public domain. So if a work was published in 1964, it would have had to be renewed in 1992 (1964 + 28 = 1992) -- but in 1992, the renewal requirement was abandoned, so renewal didn't matter. Basically, 1964 is the first year to take advantage of the optional renewal.

The year 1977 comes from the fact that the Copyright Act of 1976 became effective January 1, 1978; 1977 was the last year for the old law's scheme, of multiple terms based on publication, to be used.

Works published between 1923 and 1963
Works published between the years 1923 and 1963 received an initial copyright term of 28 years from the date of publication; if the copyright was not renewed, it lapsed, and the work went into the public domain. Another 67 years of protection could be obtained by filing a renewal, for a total term of 95 years. So, a work published in this period either had a 28-year term, now expired, or a 95-year term, still in effect, depending on whether a renewal was made.

Why 1923 and 1963?

Well, a work published in 1923 would have been up for renewal 28 years later, in 1951 (1923 + 28 = 1953). Then it would have gotten a second copyright term of (taking into account later legislation) 47 years, up to 1998 (1953 + 47 = 1998). It would ordinarily have expired at the end of 1998; however, 1998 was the year that the Sonny Bono Copyright Term Extension Act, Pub. L. 105-298, became effective. This law added another 20 years to the terms of existing copyrights (1998 + 20 = 2018). Anything older than 1923 would have expired before the extension was made law.

The year 1963 comes from the fact that the 28-year term starting in 1963 would have ended in 1991 (1963 + 28 = 1991). In 1991, renewal was still a requirement to get the second term of copyright. That requirement was not lifted until 1992.

Works published 1922 or earlier
The copyright in works published in 1922 or earlier are now expired. Those works are in the public domain.

Why 1922? A work published in 1922 would have gotten a 28-year term, ending in 1950 (1922 + 28 =1950). Even if the copyright was renewed, the copyright would be extended for another 47 years under the laws in effect at that time, until 1997 (1950 + 47 = 1997). It then would have expired. The Sony Bono Copyright Term Extention Act, referred to above, was not enacted until 1998 and did nothing to revive copyrights already expired, so works published 1922 or earlier were not revived.

Works created, but not published, prior to 1978
You probably notice that for post-1978 works, creation was the start of the copyright, while, for pre-1978 works, it was publication. But what about for works that were created prior to 1978 but never published, or not published until after 1978?

These works are treated like post-1978 works, with a little twist. As a baseline, they're protected for the life of the author, plus 70 years (or, for works made for hire and anonymous or pseudonymous works, for 120 years from the date of creation or 95 years from the date of first publication). Here's the twist: regardless of when the author dies or when the work was created, the copyright extends through the year 2002, and if the work is published prior to the end of 2002, the copyright lasts through the end of 2047. 17 U.S.C. § 303.

Whew! And to think I went into copyright law instead of tax to avoid the math.

For further reading:

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2.5) What advantages are there to registering my work with the Copyright Office?

In order to sue for infringement, with some exceptions, your work must be registered with the Copyright Office. However, you may register after the infringement occurs, as long as it's before filing your lawsuit.

The advantage to registering prior to infringement is that it allows you some additional remedies that aren't available if you registered after infringement: namely, statutory damages and attorney's fees. 17 U.S.C. § 412.

"Statutory damages" are damages specified in the statute, as opposed to "actual damages," which are damages that you can demonstrate in court that you actually suffered. If you registered your work prior to infringement, you can skip showing any actual damage, and just elect to receive statutory damages. 17 U.S.C. § 504(a).

Statutory damages for copyright infringement are $750 - $30,000, as determined by the court. If the infringer proves that he or she was not aware and had no reason to believe that his or her acts constituted infringement, the court may lower damages to as low as $200 per infringement. On the other hand, if the plaintiff proves that the defendant's infringement was "committed willfully," the court may award damages to as high as $150,000 per infringement. 17 U.S.C. § 504(c).

In deciding whether to register your work, you must weigh the probability of an infringement action (and the advantages of attorney's fees and statutory damages in such an action) against the $30 cost of registration.

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2.6) How can I register a copyright with the U.S. Copyright Office?

To register a copyright, file the appropriate form with the U.S. Copyright Office, including the payment for registration costs ($30 as of the time I write this).

For most types of work being published in the United States, two copies of the work being registered must be deposited with the Copyright Office for the use of the Library of Congress. Strictly speaking, the deposit is not a requirement for copyright.17 U.S.C. § 407(a). However, failing to make the deposit at time of publication can result in fines.17 U.S.C. § 407(d). Some works are exempt from the deposit requirement.17 U.S.C. § 407(c).

The easiest way to get the forms is from the Copyright Office web site, at <>. Just find the form you need, download it and print it out and complete it, and send it to the Copyright Office with the appropriate fee. Forms are all in Adobe Acrobat format. You can print them using the Adobe Acrobat Reader, available from Adobe's web site at <>.

Registration forms can also be ordered by calling the Copyright Office Hotline at (202) 707-9100. When the answering machine answers, leave a message with your name and address, identifying the material you are ordering. Ask for the form either by form number, or by Copyright Office Information Package number. A Copyright Office Information Package is a collection of information on registering copyright for a particular type of work. It includes the appropriate forms, instructions for completing them and other useful information.

Here is a list of commonly requested forms and Copyright Office Information Packages, arranged by type of copyrighted work:

For further reading:

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2.7) What advantages are there to including a copyright notice on my work?

As noted in section 2.3, under U.S. law, a work is copyrighted as soon as it is created. No notice is required to retain copyright. While most of the world has operated this way for some time, this is a comparatively recent change in U.S. copyright law, as of March 1, 1988, the effective date of the Berne Convention Implementation Act, Pub. L. 100-568, 102 Stat. 2853 (See sections 4.1 and 4.2 for a discussion of the Berne Convention).

Although notice is no longer a requirement, there are still some sound reasons for using one anyway.

If you include a copyright notice on a published copy of your work to which the defendant in an infringement suit had access, he or she may not plead "innocent infringement" (i.e., that he or she was not aware and had no reason to believe that his or her acts constituted infringement, the so-called "innocent infringement" defense) in mitigation of actual or statutory damages. 17 U.S.C. §§ 401(d), 402(d).

Unlike the decision of whether to register your work, this is a no-brainer, since it's simple and free: just include a notice on every published copy of the work.

A proper copyright notice consists of three things: 1) the letter "C" in a circle (©, called, logically enough, the "copyright symbol"), or the word "Copyright," or the abbreviation "Copr."; 2) the year of first publication; 3) the name of the copyright owner. 17 U.S.C. § 401(b).

Using "(C)" in place of a copyright symbol © is not a good idea. To the best of my knowledge, no court has expressly ruled one way or another whether "(C)" is a sufficient substitute for a copyright symbol. One case, Videotronics v. Bend Electronics, 586 F.Supp. 478, 481 (D. Nev. 1984), implies that it is not sufficient; another, Forry v. Neundorfer, 837 F.2d 259, 266 (6th Cir., 1988), implies that it might be. While courts are generally lenient in allowing for what makes up a valid notice, it's best to be squarely within the statute. If you can't make a copyright symbol, either spell the word out, or use the "Copr." abbreviation.

As a side note with regard to international protection, the Universal Copyright Convention requires that, at a minimum, all signatory nations that require notice must accept the C-in-a-circle variant; it does not provide a provision for a spelled out variant. On the other hand, most nations that have signed a copyright treaty are signatories to the Berne Convention, which forbids requiring a notice as a condition to copyright. See section 4.1 for details.

For a sound recording, the notice requirement is similar, except that it uses the letter "P" (for "Phonorecord") in a circle, plus the year and owner name. 17 U.S.C. § 402(b). The statute does not provide a spelled out alternative to the P-in-a-circle.

For further reading:

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2.8) Can I ever use a copyrighted work without permission of the copyright holder, or "What is fair use?"

In any analysis of copyright, it's important to remember the law's constitutional purpose: to promote science and the useful arts. "Fair use" is a doctrine that permits courts to avoid rigid application of the copyright statute when to do otherwise would stifle the very creativity that copyright law is designed to foster. The doctrine of fair use recognizes that the exclusive rights inherent in a copyright are not absolute, and that non-holders of the copyright are entitled to make use of a copyrighted work that technically would otherwise infringe upon one or more of the exclusive rights. Although fair use originated "for purposes such as criticism, comment, news reporting, teaching, ... scholarship, or research," it also applies in other areas, as some of the examples below illustrate. However, courts seem more willing to accept an assertion of fair use when the use falls into one of the above categories.

Perhaps more than any other area of copyright, fair use is a highly fact-specific determination. Copyright Office publication FL102 puts it this way: "The distinction between 'fair use' and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission."

The document then quotes from the 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law., providing the following examples of activities that courts have held to be fair use:

Document FL102 is included in Copyright Office information kit 102 ("Fair Use"), which can be ordered from the Copyright Office (see section 5.1). It can also be found on the Copyright Office web site at <>.

Carol Odlum, a free-lance editor, has provided a set of guidelines used by one publisher as rules of thumb. These certainly have no legal force, but it's instructive to note at least one publisher's interpretation of what "fair use" means in the real world. The publisher uses the following criteria for determining when permission of the copyright holder must be sought in order for the work to be used:

For further reading:

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2.9) Fair use - the legal basis of the doctrine.

Section 2.8, above, describes fair use in a nutshell. This follow-on entry provides a more detailed description of the doctrine for those interested in the nuts and bolts.

There are four factors used to decide whether a particular use of a copyrighted work is a fair use:

  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.
  5. 17 U.S.C. § 107.
The remainder of this answer discusses how each of these factors has been interpreted.

(1) The purpose and character of the use: In considering the purpose and character of the use, courts have looked to two characteristics of the use: whether the use is commercial and, somewhat less frequently, whether the use is a "productive" one.

If the copyrighted work is being used commercially, e.g., all or part of a copyrighted drawing being used in a commercially published book on drawing techniques, that's a strike against it being fair use. On the other hand, if the same drawing were used in a non-profit school to teach children to draw, then this factor would be in favor of finding a fair use. Most situations are somewhere in between. That is, a use might not be commercial, but it's not necessarily non-profit educational, either.

Note, though, that the statute does not command this "commercial/non-profit educational" balance, and not all courts use it, at least not by itself. Commercial use might be forgiven if the use is characterized as a "productive" or "transformative" use, i.e., a use of the material that interprets or otherwise adds value to the material taken from the copyrighted work. See Consumers Union v. General Signal Corp., 724 F.2d 1044, 1047 (2nd Cir. 1983) (noting that the use of one of Consumer Report magazine's reviews of a vacuum cleaner in an advertisement was a fair use, in part because the purpose and character of the advertisement was in part to educate consumers). The Supreme Court has noted that the distinction between "productive" and "unproductive" uses is not wholly determinative, but is helpful in balancing the interests. Sony Corp. v. Universal City Studios, 464 U.S. 417, 455 n.40 (1983).

(2) The nature of the copyrighted work: If the work being used is one that is factual or functional in nature, then that's a point in favor of use of that work being a fair use. That's because copyright isn't available for facts themselves, and the courts recognize that it's kind of dumb to force someone with a newspaper clipping to completely rewrite it to avoid infringement (besides, a paraphrase is still an infringement, because it qualifies as creating a derivative work, even if it's not a direct copy). If the work is a fictional or artistic one, though, taking the work is taking much more than any underlying facts. A fictional or artistic work is more expressive than a factual one, so the copyright (which is designed to protect expression) is stronger. Even in factual works, however, where the portion used includes subjective descriptions whose power lies in the author's individualized expression, this factor might go against a finding of fair use, if the use exceeds that necessary to disseminate the facts. See Harper and Row v. Nation Enterprises, 471 U.S. 539 (1985) (finding no fair use for infringement of former U.S. President Ford's memoirs despite its factual content).

Another point that's often examined in looking at the nature of the copyrighted work is whether the work has been published. Courts will generally consider a use of an unpublished work as more likely to infringe than a similar use of a published work. Harper and Row v. Nation Enterprises, 471 U.S. 539, 564 (1985). This is for two reasons. First, the first publication is often the most valuable to the copyright holder. Second, it affects the copyright holder's ability to choose not to publish the work at all. See Salinger v. Random House, 811 F.2d 90, 97 (2nd Cir. 1987).

As with the first factor, while the "fact/fiction" balance and "published/unpublished" balance are two of the most common, they are not commanded by the statute, which only requires considering the "nature of the copyrighted work." For example, in Sega v. Accolade, 977 F.2d 1510, 1525 (9th Cir., 1993), the Court of Appeals noted that the nature of most computer programs distributed in object code is that the functional (and therefore unprotected) elements cannot be discerned without disassembly. This supported the court's opinion that, in certain limited instances, disassembling of a competitor's product to find interface information that cannot be obtained in any other way is a fair use of the work, despite the fact that code disassembly necessarily involves making a copy of the copyrighted program.

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole: This appears simpler than it really is. On the face of it, it means that if you incorporate 95% of a copyrighted work into another work, it's a lot less likely to be a fair use than if you take only a small portion, say, 5%. And that's true. However, assessing this factor is a bit more complex than that simple statement. Even if only a small portion of the work is used, if that portion is "qualitatively substantial," e.g., if the portion used is essentially the heart of the work, that use will be deemed to have been "substantial," and could go against a finding of fair use. See Harper and Row v. Nation Enterprises, 471 U.S. 539 (1985) (finding no fair use for infringement of former U.S. President Ford's memoirs, where the portion used (which described Ford's decision to pardon former President Nixon) included "the most interesting and moving parts of the entire manuscript"), and Roy Export Co. v. Columbia Broadcasting System, 503 F.Supp. 1137 (S.D.N.Y. 1980) (taking of 55 seconds out of 89-minute film deemed "qualitatively substantial").

To confuse matters further, some courts have (erroneously) interpreted this factor by looking at what percentage of the work using the material is composed of material from the copyrighted work, rather than what percentage of the copyrighted work was used. See, e.g., Association of American Medical Colleges v. Mikaelian, 571 F.Supp. 144 (E.D. Pa, 1983), aff'd 734 F.2d 3 (3rd Cir., 1984), aff'd 734 F.2d 6 (3rd Cir., 1984). While this interpretation is probably erroneous, it's worth bearing in mind that, at least in one judge's courtroom in the Eastern District of Pennsylvania, that's how the statute will be interpreted.

(4) The effect of the use upon the potential market for or value of the copyrighted work: The U.S. Supreme Court has stated that this factor is "undoubtedly the single most important element of fair use." Harper and Row v. Nation Enterprises, 471 U.S. 539, 566 (1985). The late Professor Melville Nimmer, in his treatise on copyright law, paraphrased it, "Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied." Nimmer on Copyright, § 1.10[D]. If the use impacts the market for the work, the use is less likely to be held to be a fair use.

Note also that the weighing is of the impact on the potential market, not on the actual market. For example, at one time Playboy magazine did not distribute its pictures in machine-readable form. One could have argued, at that time, that digitizing a picture and posting it on the net would not impact the current market for the magazine originals. That argument fails: those activities impact the potential (but then non-existent) market for machine-readable copies. Because there is an impact on the potential market, an analysis of this factor in such a situation would not support a finding of fair use.

If all this sounds like hopeless confusion, you're not too far off. Often, whether a use is a fair use is a very subjective conclusion. In the Harper and Row case cited above, for example, the Supreme Court was split 6-3. In the famous "Betamax case," Sony v. Universal City Studios, 464 U.S. 417 (1984) (in which the Supreme Court found that off-air non-archival videotaping of broadcast television was a fair use), the split was 5-4. In both of these cases, the District Court ruled one way (no fair use in Harper and Row, fair use in Sony) and was reversed by the Court of Appeals, which was then itself reversed by the Supreme Court. This goes to show that even well-educated jurists are capable of disagreeing on the application of this doctrine.

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Disclaimer -- please read

This article is Copyright © 1993, 1994, 2002 by Terry Carroll. It may not be redistributed, either in its entirety or in part, whether for profit or not, nor incorporated in any other document without the written permission of the copyright holder.

This document is provided "as is" without any warranty, express or implied, including no warranty of merchantability or of fitness for a particular purpose. Use at your own risk. While all information in this article is believed to be correct at the time of writing, this article is for educational purposes only and does not purport to provide legal advice. If you require legal advice, you should consult with a legal practitioner licensed to practice in your jurisdiction.

The views expressed, the interpretations made, and the conclusions reached in this article are those of the author. Specifically, such views, interpretations and conclusions are not intended to reflect those held by any party or institution employing, associated with, or represented by the author.

References to the first person ("I," "me" and the like) generally refer to Terry Carroll, the author and maintainer of the Copyright FAQ, unless context suggests otherwise.

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