Fair Use and Its Users

In this essay I want to revisit the American concept of fair use, which is currently attracting an abundance of attention from the academy and its publishers, especially because of the digital turn.¹ My goal is to underscore something most media scholars already know: given the many roadblocks they face in publishing, fair use is one of the few legal tools that can genuinely help them improve their lot if—and only if—they stand together firm as a discipline.

Put simply, fair use is a principle that allows someone to make use of another person's copyrighted material without having permission to do so. Fair use in publishing can mean anything from quoting a few words from an e-mail to repurposing an entire film. Some people think that borrowing or appropriating a work weakens its copyright, but that is not true. A work is in copyright or it isn't: no amount of borrowing can undermine the author's right to license or otherwise benefit from it.

What everyone wants to know is, how far can I take quotation under the relative safety of fair use, and when have I gone too far? In fact, there is no perfect answer, no single measure of assurance that if one publishes the work of another without permission, one will absolutely be protected under the law. For every legal decision that suggests the liberties associated with fair use are many, there exists another that strives to set byzantine limits.²

The reason for the disparity is this: fair use is an equitable rule of reason that tries to balance two seemingly contrary rights guaranteed by the US Constitution: freedom of speech and copyright protection. Thus, fair use comes into play on a case-by-case basis, and context is everything. Since 1976, fair use has been an integral part of the US Copyright Code, and it is there for a simple reason: to encourage creative endeavor.³ The fair-use doctrine lists four factors to help judges and lawyers—and authors and gatekeepers like you and me—assess whether a case of fair use exists in any particular instance:

1. 1. The nature of the copyrighted work—Is the material you want to use factual, or is it creative? Mining facts from a science book and putting them toward one's own creative project is acceptable because "facts" in and of themselves are not considered works of creative expression. By contrast, criticism and commentary are, as are motion pictures.

2. 2. The amount of the copyrighted work one wishes to use—When it comes to diachronic works such as movies and novels, if one quotes only a small amount of the whole, this normally supports a conclusion that the use is fair. But, obviously, what has traditionally worked for literary criticism and Film Studies does not begin to serve the needs of, say, art historians, who need to reproduce an entire work—a whole drawing, a complete photograph—in order to write about it properly.

3. 3. The effect of the use on the market for the original work—In publishing a few frames of Sam Peckinpah's Straw Dogs in an article or posting a short passage of the film on a scholarly blog, are you undermining the market for it or depriving the copyright holder of income? Of course not. In fact, as the music industry has finally figured out, creative work accrues value by being seen and heard. Furthermore, if a motion-picture studio actually needs the money it earns from reproductions of a few film frames in scholarly publications, its days are worse than numbered. But uses that seem to take the whole heart of a work can certainly affect a copyright holder's ability to capitalize on it.

4. 4. The purpose and character of the use—If a scholar takes a work without permission and writes about it, has he or she transformed it? In reframing the work—be it a poster or a film—does the critique cast it in a new light? Does the scholar offer fresh insight that changes its meaning in the minds...