A crash course in copyright law, part 3 (exceptions)By Janet
April 21, 2018
A crash course in copyright law, part 3 (exceptions)
What are some exceptions to copyright infringement cases?
So, when is it all right?
Purdue University offers a terrific and very readable summary of the main known exceptions to copyright infringement claims.
Note: the law changes in every area. This blog is no substitute for talking directly with an experienced copyright attorney!
For the fair use defense, Purdue outlines four basic factors:
Purpose and character
Some specifics favor fair use. These include nonprofit, educational, and personal usages. Plus there are those representing a potential tipping point. These include teaching, research, scholarship, criticism, commentary, and news reporting. And there are those which favor needing permission. These include commercial, entertainment, and for-profit uses. That is, a nonprofit’s research is more likely to be fair use than a for-profit enterprise’s commercial use. Hence the for-profit enterprise should seek the copyright holder’s permission.
Nature of work
To favor fair use, it should be a fact and/or published. But to favor needing permission, it should be a fiction and/or unpublished. E. g. It’s more likely to be fair use if you repeat a published fact about dinosaurs. Whereas you more likely need permission when it’s an unpublished novel about vampires.
Small and insignificant instances of copying are more likely to be fair use than large ones representing a work’s heart. As a result, those are more likely to require permission. That is, if I copy the character of Millicent Bulstrode, then the character is minor and small. However, this does not necessarily mean JK Rowling won’t sue me. Copying Hermione Granger is another matter entirely.
You’re more likely to be in the fair use realm if:
- Licensing/permissions are unavailable or there is no major impact,
- There is limited/restricted access to the work, or
- The user or institution owns a legal copy.
But it’s different if there is a major impact, or licensing/permissions are readily available. Or the work has worldwide availability, or there is repeated or long-term use. Then the scale slides to requiring permission. Profit and sales are not an element to this cause of action. Although selling the copied article, particularly multiple instances of it, can place the act into the ‘requires permission’ camp.
Face to Face Instruction
According to Purdue,
The traditional classroom or face-to-face instruction is when the instructor and the students of a nonprofit educational institution are in a place devoted to instruction and the teaching and learning take place at the same time. In this setting all performances and displays of a work are allowed.
- All materials must be legally acquired.
- Teaching activities must take place in a classroom or a similar place devoted to instruction.
Similar to the face-to-face instruction allowance, virtual instruction generally gets a pass, according to Purdue University. However, there are some specifics, such as the class must be a regular offering in the curriculum.
What about Parody?
The American Bar Association notes the United States Supreme Court treats parody and satire separately. But the ABA feels it’s a distinction without much of a difference. Both are mockery. However, satire is often more like commentary than outright mimicry. For the ABA, and particularly when a work has both elements, the difference matters less. Although copyright holders might be more inclined to license satire rather than parody. This is because parody is pretty much a knockoff by definition.
Commentary generally falls under fair use. That commentary can be amusing or not, satirical or not. Copying generally isn’t fair use, but amusement and exaggeration blurs that line.
The best advice I can give you is: don’t make your work into a copyright test case.
In other words: be original!