Fair Use: Difference between revisions

{{Useful Notes}}

''There are occasions when parts of a work still under [[Copyright]] [and [[Disney Owns This Trope|trademark]]] may be legally used or copied even without the copyright holder's permission.''

 

What the courts examine in determining fair use is what the use is (its "character"), the amount used, and the purpose for its use. A commercial use (as in a story or in an advertisement) is ''slightly'' less likely to be considered fair; non-commercial uses generally get more leeway. Also, generally for a use to be fair, it must be only what is necessary to make the point of the intended use. Use too much, and it turns from fair use to infringement.

 

* Comment - Showing how a work has certain characteristics. For example, the opening of one song may be similar to another song, and a fair use could include a few seconds from both to show the similarities. But borrowing the entire song would obviously fail a claim of fair use.

* Criticism - When a review show uses a clip of a movie to show how bad it is, even if the studio did not give the reviewer the clip, the use would be considered fair. Where the clip is used in a review that praises the movie, the studio ''probably'' won't sue...

** In America, parody all but gets a free pass, and attempts to dispute fair use on parodies are socially frowned on; this has the unintended side effect of encouraging [[Indecisive Parody|Indecisive Parodies]].

** Also, it is important to note that American courts make a distinction between Parody (that is where the original work is the target of the ridicule) and Satire (where the original work is used to mock something else). While satire can be considered fair use, it is much harder, as the court will analyze whether it was necessary to use the original work, since the satirist could have made their own novel work to get the comedy job done. Thus in Copyright and Trademark law, satire and parody are very distinct terms of art.

 

There are cautions, which is why lawyers live in luxury. A use in one context might be considered fair in one court and not fair in another. Some uses are always considered fair, but others are borderline cases where sometimes it was called fair and sometimes it wasn't. And Big Media is working to ''kill'' fair use in order to maximize profits.

{{examples}}

== United States ==

* Eveready Battery Co. (as of 2000, Energizer Holdings Inc.) had been running a set of television commercials using its pink bunny to walk through [[Parody Commercial|parody commercials]] of fictional products. Adolph Coors Brewing Co. decided to do a beer commercial in which [[Leslie Nielsen]] wore a pink bunny costume, as a parody of Eveready's own parodies. Eveready didn't like this and sued. In deciding that Coors' parody was fair use, the court pointed out that there's no competition between the sale of batteries (or their uses) and the sale of beer. In comparing the Energizer Bunny and a man in a pink rabbit suit, the judge pointed out that "Mr. Nielsen is not a toy..., does not run on batteries, is not 15 inches tall... [and] is not predominantly pink." ''Eveready Battery Co.'' v. ''Adolph Coors Co.'', 765 F. Supp. 440 (N.D. Ill. 1991).

* West Coast disc jockey Rick Dees asked permission to use part of the song "When Sunny Gets Blue" to lampoon the performance of Johnny Mathis in a parody called "When Sonny Sniffs Glue". The copyright owner, songwriter Marvin Fisher, refused to grant permission, but Dees decided to use about 29 seconds of the song anyway. Fisher sued, arguing that the use was not fair and that the request for permission was evidence that Dees was aware his use was not fair. The court decided that the amount of use was reasonable for parodying Mathis' style, it had no effect on the market value of the underlying song, and asking for permission does not affect the determination as to whether a use is or isn't fair. The decision finding the use to be fair was upheld on appeal. ''Fisher'' v. ''Dees'', 794 F.2d 432 (9th Cir. 1986)

* The Supreme Court declared VCRs—and by extension DVRs—to be fair use (provided that the copies are limited to personal noncommercial use), even though the use is the entire copy of the work, basically because the purpose isn't to deny the copyright owner revenue (the shows are provided to the user either free or as part of their subscription if it's a pay service) and (as stated before) it's for the consumer's personal use and is not being done for commercial purposes. ''Sony Corp. of America v. Universal City Studios, Inc.'', 464 U.S. 417 (1984). (What is ironic now is that Sony is basically on both sides of this issue, since they make video recording devices ''and'' operate studios.)

 

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[[Category:Media Law Tropes]]