Your Copying Rights Under Copyright Law

 

Questions and Answers

 

Q   May I videotape a broadcast (movie or news show) that is shown on a public television station and later show the broadcast to my class?

A    The answer can only be determined by analyzing "fair use."  First, the purpose of the use is for nonprofit educational purposes.  This would weigh in favor of a finding of fair use.  If your intent was to charge admission, then the use would be considered commercial, and the presumption would be against fair use.

The nature of the work is the second factor to be considered.   Factual works are granted less protection than primarily creative works.  The movie The Age of Innocence would be considered a primarily creative work.   A news report would be considered more factual, and generally entitled to less protection.

The third factor is how much of the work will be used.  In this instance, you plan to show the entire movie.  Although this is a nonprofit use of the work, using the whole work will weigh somewhat against a finding of fair use.   However, the fact that the use is for educational purposes must be factored in, and may allow use of the entire work.

Finally, you need to ask what effect will your proposed use of the work have on the market?  Copying means that you will not be purchasing the movie, and thereby depriving the copyright owner of revenue.  Users considering the market effect may be tempted to reason that they would not have purchased the work if this was a prerequisite to showing the movie, as opposed to off the air copying.  A more relevant question to ask may be "Is it reasonable in this instance to ask permission and pay a license fee for my use of the copyrighted material?"  The answer to that question will vary from case to case.

Would showing the movie to your class be a fair use?  The market effect seems to be minimal, and the primary purpose educational.  A good defense of fair use could be articulated.  However, if you plan to show the same movie over a number of semesters, you should either ask the university to purchase a copy of the film, or seek permission to show the film through the Copyright Clearance Center.  A small licensing fee may be involved.

In a case involving Encyclopedia Britannica³ the court found the defendant Board of Educational Services for public schools in Erie County, New York, had infringed the copyright when the Board retained videotapes of off-air broadcasts for 10 years and showed them repeatedly.  In that case, the court found that the repeated and broad scale use of the taped works use was a "virtual substitution for the purchase of license of the plaintiffs’ works."  The market for the works in this instance happened to be schools.

 

Q   Suppose the university library contains an unpublished manuscript, by a widely known author of children’s books.  The university has physical possession of the manuscript, but a foundation owns the literary rights in the manuscript.  A professor has asked the library to make her a copy of the manuscript.  She wishes to read the work and comment upon it in an article she is writing about this author.

A   First, seek permission from the copyright owner before copying the work.  (Note the difference between physical ownership of documents, and ownership in the copyright in documents. Under the law, physical ownership and copyright may be separate.)  If the owner refuses to grant permission, copying the manuscript would, in this instance, most likely be found to be a fair use.  The purpose of the use is clearly educational, with no evidence of a commercial motive.  The nature of the work is an unpublished, creative manuscript.  Unpublished documents are generally granted greater protection.  Consideration of this factor alone would go against a finding of fair use.  The amount of the work to be copied is the entire work.  Once again, this factor alone would argue against copying the document.   The market effect of this usage must also be calculated.  In articulating this factor, Pierre N. Leval stated the following:  "The fourth factor disfavors a finding of fair use only when the market is impaired because the quoted material serves the consumer as a substitute, or, in [Justice] Story’s words ‘supersedes the use of the original.’" Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1125 (1990).

In a recent case⁴ that met the above fact situation, the court found that a foundation’s copying of an entire unpublished novel by Marjorie Kinnan Rawlings, the author of "The Yearling," at the request of a scholar studying the works of Rawlings, was indeed a fair use.  The goal of preserving the original work free of damage, and of benefiting the public by furthering knowledge of the author’s work, outweighed the negatives in the fair use test.  In other words, when the goal of the statute is clearly being met, one factor may be given great weight.

 

Q   For my English literature class, I would like to make multiple copies of the appendix to the "The Western Canon:  The Books and School of the Ages" by Harold Bloom.  My plan is to give one copy to each of my students with the instruction that they choose eight titles to read over the semester from the "Books and School of Ages" listing in the appendix.  Is this considered a fair use?

A    Note that the book includes the standard copyright notice which reads:

All rights reserved.  No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher.

The fact that the book includes a copyright notice does not automatically mean that it would not be a fair use to copy a part of the work.  By the same token, the omission of the copyright notice from a work does not automatically mean that it would be a fair use to copy the work.

Applying the Fair Use Doctrine, the purpose of the use is educational in nature and nonprofit, which would generally favor a finding of fair use.   Making multiple copies for classroom use is specifically mentioned in the statute as something that might be a fair use.

The nature of the work is that it is published, which tips the balance in favor of finding fair use.  Although the appendix merely lists the titles of books, there is clearly an element of creativity to this list.  The author read all the books in original languages and then came up with his own listing of what he considered the best works to be.  This was a writing "conceived as artistic or instructive creation, made in contemplation of publication" (Leval, supra at 1117).  The fact that the work is primarily creative rather than factual would go against a finding of fair use.

The question posed by the third factor, how much or the amount and substantiality of the portion used in relation to the copyrighted work as a whole, involves both a quantitative and a qualitative assessment.  It is not just the total number of pages, but how important those pages are in relation to the rest of the text.   While the number of pages in the appendix is small in relation to the entire text of The Western Canon, some might make an argument that the heart of the book is contained in the appendix.  In one case,⁵ The Nation, a weekly news magazine, published 400 words of a memoir by former President Gerald Ford, prior to the scheduled publication in Time magazine.  The Supreme Court found these 400 words constituted the heart of the work and the use was not a fair one.  A court might find the same with respect to copying the appendix to The Western Canon.

Finally, the market effect must be considered.  In this instance, a one-time distribution of copies of the appendix to the students in a class would probably not result in substantial impairment and, assessing all factors together, it seems there is a good argument for fair use.  Note, however, that if the professor were to post the appendix on his or her Web site home page without permission from the copyright owner, the market impairment is suddenly magnified, and a finding of copyright infringement is much more likely.  If the professor is going to use the appendix repeatedly, then several copies of the text should be purchased and placed in the library, or the Copyright Clearance Center should be contacted with respect to payment of a licensing fee.

If there is serious doubt about fair use, asking permission is always the preferred choice.

 

³Encyclopaedia Britannica Educational Corp. v. Crooks, 542 F. Supp. 1156 (W.D. N.Y. 1982).
⁴Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4^th Cir. 1998).
⁵Harper & Row, Inc. v. Nation Enterprises, 471 U.S. 539 (1984).

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