Lecture 3-4_ Fair Use (1)
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Lecture 3-4: Fair Use
Fair Use Factors
1.
Purpose and Character of the Use
a.
This considers whether the use is of a commercial nature or is for nonprofit educational purposes. b.
Transformative uses (those that add new expression, meaning, or message) are more likely to be considered fair use.
i.
In reality, this factor actually weighs the heaviest
. If you check out on this one, you have a relatively high chance in court's ruling in your way in that your use was fair use. 2.
Nature of the Copyrighted Work
a.
This involves considering the type of the copyrighted work used. b.
Using a factual work like a non-fiction book is more likely to be seen as fair use compared to a highly creative work like a novel or a movie.
3.
Amount and Substantiality of the Portion Used
a.
This factor looks at the quantity and value of the copyrighted material that was used. b.
Using a small, non-essential part of a work may favor fair use, especially if the portion used is not considered the "heart" of the work.
4.
Effect on the Market
a.
This considers the effect of the use on the potential market for, or value of, the copyrighted work. b.
If the use could negatively impact the sales or potential market of the original work, it is less likely to be considered fair use.
5.
ADDITIONAL: Credit
Safe Harbor of Fair Use
1.
"Am I using the material to support a new and original point?"
a.
This question focuses on the purpose and character of your use. It checks whether your use adds something new or is for a different purpose than the original work. The more transformative your use is (meaning it adds new expression, meaning, or message), the more likely it is to be considered fair use.
2.
"How much of the material do I use, and is this amount necessary for my purpose?"
a.
This relates to the amount and substantiality of the portion used. It's important to use only what is necessary to achieve your purpose. Using a small, non-central portion of a work, especially if it's not the "heart" of the work, is more likely to favor a fair use claim.
3.
Is the point clear to the average viewer?
a.
Clarity in how the material is used to convey a new expression or meaning supports the argument that the use is transformative, a key aspect of fair use. This clarity is particularly important in contexts like parody, where it must be evident that the work is being mocked or commented upon, rather than just copied.
b.
“The Sleepy Judge Test”--would a random person be able to understand the point that you are making? i.
Doesn’t apply to all examples, especially when the material is complex—
like scientific findings to adapt a certain invention/model and reproduce it in a commercial market. In this case, the Sleepy Judge would be a scientist
on the same level of knowledge, or a part of the audience/community that should be able to understand that work.
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Purpose and Character of the Use
Warhol's adaptation of the Prince photo into pop art aimed to offer a new artistic perspective, but
the Supreme Court felt it didn't transform the original enough to warrant fair use. This raises questions about where the line is drawn for transformative work, as Warhol's distinct style and the context of his piece arguably presented Prince in a new light, which is a core element of fair use aimed at fostering creativity and innovation.
Nature of the Copyrighted Work
The photograph of Prince was a creative, copyrighted work, entitled to full protection. The decision underscores the importance of respecting original artists' copyrights, even when the new
work aims to provide commentary or a different interpretation. This aspect of the ruling highlights a protective stance on copyright law, emphasizing the original work's value and the rights of the copyright holder.
Amount and Substantiality of the Portion Used
By using the entire essence of the original photograph, Warhol's work fell into a tricky area under fair use scrutiny. This factor often examines whether the new work used more of the original than necessary for its transformative purpose. The ruling suggests a cautious approach towards using substantial parts of copyrighted works, pushing artists to consider carefully how much they need to use to achieve their creative goals.
Effect on the Potential Market
The court's concern with Warhol's piece competing in the same market as the original photo highlights the economic implications of copyright infringement. This factor is crucial in understanding the broader impacts of copyright decisions on the potential market for original works. It suggests a protective stance towards the copyright holder's economic interests, potentially limiting the scope for derivative works even in cases where the market audience might differ.
Impact on Artists and the Industry
This ruling could significantly impact artists' willingness to explore and innovate, fearing copyright infringement claims. It places a heavier burden on artists to justify their use as transformative and not infringing on the original work's market. For the industry, this may mean a cautious approach to dealing with copyrighted materials, potentially stifling creativity and limiting the development of new works that build upon existing ones.