How to Copy "Right" (And How Fair Use Decides We're Not "Wrong")

ckosarek's picture

Part I: Fair Use and Its Scope




What case law has to say about it

Celebrity blogger, Perez Hilton, enhances copyrighted pictures of celebrities and posts his versions of the pictures on his blog

Perfect 10, Inc. v. Google, Inc. et al. (2005): Collecting copyrighted images and displaying altered copies of the images in a public forum does violate the “fair use” clause of copyright law.

A teacher distributes fifty copies of a copyrighted poem to her class.

MacMillan Co. v. King (1914): “Fair use” doctrine does allow for the free distribution of academic works in classrooms for educational purposes, provided that the copies are not sold for profit or reprinted.

A man videotapes a popular sitcom in his home and later makes copies of the tape for several friends. 

Sony Corp. of America v. Universal City Studios, Inc. (1984): Television shows are broadcast on public airwaves and recording material from public airwaves using at-home equipment does not violate copyright law. Further, distributing those recordings does not violate “fair use” terms because they are of inferior quality to that of the original.

“Weird” Al Yankovic parodies Chamillionaire’s “Ridin’ Dirty” in his song, “White and Nerdy.”

Harper and Row Publishers Inc. v. Nation Enterprises (1985): If a derivative work diminishes the market for the primary work by taking directly from that primary work, then “fair use” has been violated. However, if a derivative work encompasses elements of the primary work (as with a parody) but does not substantially draw from the material of that work, then the derivative work is within the scope of “fair use.”


In the chart above, I hope you noticed words like “substantially,” “public,” and “altered.” If you have been following my webpapers thus far, you know that I am on a crusade to defend copyright law and make recommendations for how “fair use” doctrine might be altered to fit our changing technological society. As a recap, fair use is:

-       a “privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without . . . consent” (Duke University School of Law).

-       meant to encourage the dissemination of ideas in novel forms.

-       judged by the following criteria:

“(1) the purpose and character of the use, including whether

such use is of a commercial nature or is for nonprofit

educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in

relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or

value of the copyrighted work.” (US Code Section 107).

Or, as an even quicker recap of copyright law and fair use doctrine, you can watch this video by Eric Faden that was posted on Stanford University School of Law’s website.


Part II: Opinions and Legal Literature about the “Fairness” of Fair Use


In an effort to foster an academic conversation involving the larger Internet community, I asked two groups – legal professionals and undergraduates – to respond to an online survey. I posted this survey on three legal forums, Serendip, and Facebook, hoping to solicit both a variety of interpretations of current fair use doctrine and a variety of responses regarding how we might change fair use in order to define it better in modern society. Unfortunately, only one legal professional responded to my survey, and though he did offer some helpful sources toward this paper, he did not directly address my questions. Thus, instead of putting legal professionals and undergraduates into conversation about fair use, I will juxtapose undergraduates’ responses to my survey with current legal literature in order to move toward a recommendation for altering fair use doctrine. Further, in hopes that my survey will still lead to a conversation about fair use, I invite all those who participated in the survey (veritatemdilexi, FatCatRex, thatcaliforniagirl13, AyaSeaver) – as well as everyone else – to comment on this paper. 


What the undergraduates think

What the legal literature says

“I think ‘fair’ and "fair use" are achieved by using or borrowing another's work, with credit, in a way that complicates or furthers your own work . . . I suppose my real issue with 'fair' is that it feels like it ought to be respectful . . . I think we are following pretty closely the prescription of the Constitution, and to it more closely would require a loss of our freedoms” - FatCatRex

“The statutory listing of preferred uses [under the fair use doctrine] includes . . . criticism, comment, news reporting, scholarship, and research . . . [and] teaching” (Duke Law Journal 99).


“First Amendment speech ‘is often not reasoned or evenhanded, but slashing and one-sided.’ As a result, free speech and fair speech are not interchangeable concepts. They are concepts at war . . . [F]ree and fair speech are two very different things – at least when state actors are put in charge of determining what speech counts as fair” (Rubenfeld 18).

 “I do not think that everything in our culture has an owner.  Individuals should be compensated for their time and ideas, but to some point it becomes excessive . . . Sometimes I wonder what the signers of the U.S. Constitution would think about society using the Constitution as a tool to moderate monetary compensation in pop culture.” - veritatemdilexi

“Copyright’s fair use exception is largely ‘econocentric’; it is organized to a considerable extent around the idea of fairness to the copyright owner’s economic interests . . . [I]n determining whether a given expression of opinion was fair, judges or juries are to consider whether the opinion was expressed for commercial purposes; whether it referred to [the original work] no more than necessary; and most important, whether it advanced a rival intellectual property scheme that might serve as [the original work’s] substitute in the market” (Rubenfeld 19-20).

“[In the example of Rhianna using Soft Cell’s musical arrangement, Soft Cell] shared their musical patterns with Rihanna. The artists do not seem to mind . . . this use . . . however to listeners and fans, it may be upsetting to hear that Rihanna used someone else's music to enrich her own lyrics. The lack of total originality is what seems to be unfair to outsiders, but not to the actual artists involved . . . It happens in all forms of media, such as novels and movies.” – thatcaliforniagirl13

“If the initial inquiry shows that non-consensual use has cause no diminution in demand [of the original work], the use will be fair, thus eliminating the need to consider the nature of the use. However, if diminution in demand occurs, the nature of the use must be considered to determine whether the economic interest of the copyright holder is to be subordinated . . . [A court must decide] whether or not the nature of the use justifies a diminution in demand.” (Duke Law Journal 96).

“The law can do a lot but part of the problem I feel is that almost every problem is a new problem. There's not enough precedence for dealing with these new copy-right situations. To start with I don't think we've done enough to establish the level to which authors (actors, singers, artists) have control or ownership. If we could establish the parameters of authorship we could establish the transgressions.” – AyaSeaver (via Facebook)

“[Some] argue that the fair use doctrine should be significantly narrowed because digital technology improves a copyright owner’s ability to commodify intellectual property, making it more like tangible property, and reduces the transaction costs associated with bargaining and enforcement . . . [C]opyright [is] a bargain between the public and copyright holders. . . [and] copyright’s current expansion has myopically focused only on the copyright holder’s side of the bargain. . . If copyright [were to] expand, that expansion should reflect what the public considers to be legitimate works of authorship . . . [We must] ‘stop defining copyright in terms of reproduction’ and focus instead on commercial exploitation” (Ku 281, 285).


Part III: Recommendations for Improving Fair Use Doctrine


From the responses of the undergraduates, it is clear that fair use faces problems not only in the subjective language of its text, but in the moral repercussions of improper use of the doctrine. Further, the legal literature points to an impact zone between First Amendment rights and fair use, as well as conflicts between both the interests of the public and copyright owners and between the subjective views of individual juries or judges and the phrasing of the law itself. Both groups focus on the vagueness of the current law. In Part I, I asked you to note the ambiguous words – “substantially”, “public”, altered” used in the case law surrounding fair use. Before you read the following recommendations for improving fair use doctrine, I ask you to try and answer the following:

-       When is a work substantially similar to another?

-       Who is the public?

-       How much does a work have to be altered to be considered novel?



Possible Complications

We need to quantify fair use doctrine in that we need to be able to measure how much of a work can be taken from its original format and added to a new work to still allow that new work to have a different format than that of the original work.

Since there are so many types of media, quantifying fair use would involve deciding where infringement lies within the context of each individual type of media. It would be difficult in deciding how to equate, for example, how much of a text could be fairly put into another textual work in light of how much of an audio track could be fairly added to another musical work. Further, some types of media would be difficult – if not impossible – to quantify due to the great variation of subcategories of media within one “type.” If we decided that no visual work could include more than twenty seconds of another visual work, for example, questions like, “What if the original work was twenty seconds long, and the derivative creator then used the entire original work?” would most definitely arise. When considering the possibility of quantifying the amount of media that can be fairly taken, perhaps each amount would have to be considered on a case-by-case basis; however, if this were the fact, then the problem of subjectivity in copyright law at the judicial level would still undeniably exist.

The language of the fair use doctrine itself has to be decoded. We must define what “novel” means, where ideas and expressions differ, and how the public (and not just the copyright owner) benefits from being able to compile past works in a new medium.

Section 101 of the U.S. Copyright Law presents definitions necessary for understanding the law, yet it leaves out those words that can be subjectively interpreted. While the problems associated with fair use are mostly found in its language, the question of whether or not we are able to agree on a definition that would eliminate some of the subjectivity surrounding the doctrine remains. As veritatemdilexi stated in her response to my survey, the words “fair” and “unfair” are polarizing. Adding definitions to subjective words in this law would polarize it even further, thus giving more power to the law and less power to the deciding nature of the courts. With more polarization in the fair use doctrine, we risk running into the problem presented by Rubenfeld; fair use could jeopardize free speech.

OR We need to eliminate the polarizing terms in the fair use doctrine and develop a system that allows for a spectrum of cases to be considered on an individual circumstantial basis.

Wait . . . isn’t this what we’ve attempted to do? Although in the end of each case, one person “wins” and the other “loses,” and polarizing terms have certainly not been eliminated from fair use case law, each case is evaluated in light of its own circumstances and impacts. Is it possible that fair use would be more effective if we made it more subjective? If we completely eliminated “winners” and “losers,” perhaps we would make compilation and collaboration more appetitive, and perhaps more creations would arise. This would certainly benefit the public, but then the problem once again becomes: how do we protect the original creator of the work?


Part IV: Final Reflections


At the end of this foray into copyright law, I had hoped to find a concrete way of improving the law. I wanted to make fair use, well, “fairer.” That did not happen. The recommendations above are idealist. It would be nice if we could be respectful of one another’s creative works and would not take advantage of them, but as seen with the 2001 A&M Records, Inc. v. Napster, Inc., creative works are subject to theft. As far as making fair use more stringent by adding polarizing definitions and drawing lines, I find that the law would then leave no room for individual considerations. Although subjectivity would be substantially (again, “substantially”) decreased, perhaps the incentive to create new works and spread ideas would also decrease – no one wants to be sued. Having delved into literature considering both sides of the copyright issue, and still believing that copyright law does continue to serve a purpose in our technological society, I am forced to confront the fact that although fair use is subjective and problematic, maybe it does effectively achieve its goal in that it persuades creators to find new means of expression (so they avoid being sued). Maybe part of the power of fair use is that it works on a case-by-case basis. And maybe the law, like the works it protects, needs to keep reinventing itself on an individual level in order to evolve with a changing society.


Works Cited


Duke University School of Law. "Copyright Fair Use: Case Law and Legislation." Duke Law

      Journal 1969.1 (1969): 73-109. JSTOR. Web. 17 Sept. 2010.


Ku, Raymond Shih Ray. "The Creative Destruction of Copyright: Napster and the New

      Economics of Digital Technology." The University of Chicago Law Review 69.1 (2002): 263-

      324. JSTOR. Web. 29 Oct. 2010. <>.

Rubenfeld, Jen. “The Freedom of Imagination: Copyright’s Constitutionality.” The Yale Law  

      Journal 112. 1 (2002): 1-60

United States Government , 2010. Web. 17 Sept. 2010. <






Stanford University Libraries, "Copyright and Fair Use":









ckosarek's picture

My conclusion? (Do I have one?)

After all this research and writing, I still see the value of copyright in our society, though I am less inclined to believe that we can quantify its value using the same measurements in different cases. Like the works it protects, copyright cases themselves feature unique circumstances that render them incomparable to other cases. Whereas a precedent may have been previously set, a new case can easily twist that precedent and nullify it. As technology evolves, I see copyright law demolishing its antiquated features and evolving as precedents are set and reset with each new case. So perhaps the best way to alter copyright is to keep the system we have in place now, where outdated precedents are "weeded out" as society advances and complicates them.

Anne Dalke's picture

the evolution of stories



Anne Dalke's picture

the polarity of fair and unfair

I have been amazed, this semester, by your "appetitive" (new word for me, thanks!) approach to questions of copyright and fair use; and as you know, I have also been utterly delighted by your willingness to try out these ideas in a range of new formats--using images, charts, trying to get "beyond" the argumentative pose that characterizes most academic work. You've done that here in spades, and you've also been able to accommodate the data that your open-ended project generated (or not); when, for example, the legal scholars didn't weigh in as you had hoped, you juxtaposed the undergraduate responses you got w/ a survey of current legal literature. You are quick on your feet (or w/ your hands....?).

I guess the most striking detail to me, in the material you've collected and presented, is veritatemdilexi's calling out the "polarizing" quality of the words "fair" and "unfair"--in line w/ her suggestion that thinking in terms of "property" might not be the most useful lens when discussing creative work. This returns me to the place where you started: the focus of copyright law on the needs of the community, rather than those of the individuals who contribute to it: attending to the question of whether the group as a whole would benefit from fair use regulations. So I end in a rather different place than you do, focused as you are, in conclusion, on the subjective particularities of each individual case?

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