Term Paper: Copyrighted Material Under U.S. Code Title 17

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Copyrighted Material

Under U.S. Code Title 17, Section 107, copyrighted works are free and fair to use under certain circumstances, and within certain guidelines (17 U.S.C. 107). These guidelines, or fair use factors, are vague at best, and can be misleading. Further, these guidelines appear to encourage the use of copyrighted material in some cases, creating an even more confusing situation for both the copyright holder as well as the intended user. This paper will outline the fair use section of U.S. Code Title 17, and will discuss the implications of the fair use factors on copyrighted material. Further, this paper will discuss examples of what is considered legal use of copyrighted material under the fair use factors, and what is considered to be in violation. This will be to show that while the guidelines for fair and free use are certainly helpful, they are not restrictive enough to provide effective guidance for the fair use of copyrighted materials.

Before analyzing examples of how the fair use guidelines translate to confusion, it is first imperative to examine Section 107 of Title 17 carefully. According to the fair use statement as laid out in Section 107, there are certain circumstances under which copyrighted material can be used without express permission from the copyright holder. These circumstances include uses for the purposes of "criticism, comment, news reporting, teaching, scholarship, or research" (17 U.S.C. 107, para. 1). In other words, if the use of the material is non-profit, educational, or critical in purpose, the use is then analyzed in terms of the "fair use" factors. This is not to say that all uses of copyrighted material in, for example, news reporting will be found to be acceptable under the fair use standard. The "purpose" statement is simply meant to imply the atmosphere in which fair use is possible.

If the intended purpose of use falls under the above criteria, Section 107 specifies four "fair use factors" to consider. The first is that of the "purpose and character" of the intended use (17 U.S.C. 107, n.1). This criterion specifies whether the use will be of a commercial nature, or a non-profit nature. The implication, then, is that uses of a non-commercial purpose are more often considered under the fair use standards (Cheskis, 16).

This criterion may seem simple enough, but imagine a commercial criticism about a specific copyrighted work, such as a novel critically analyzing the conclusions of the novel The Da Vinci Code, by Dan Brown. Under the first paragraph of Section 17, uses for the purpose of criticism are protected, but under the first criterion of fair use, commercial use is generally considered unprotected. This dichotomy is difficult to overcome, and creates a vague standard for commercial uses that pertain to protected uses. In the above example, many would presume that since uses for the purpose of criticism are exclusively protected, a novel in criticism of another work would be acceptable under the fair use decree.

The second criterion is that of the "nature of the copyrighted work" (17 U.S.C. 107, n.2). This is perhaps the vaguest portion of the four criteria for fair use. Within the guideline, there is no statement of purpose for this criterion, so without examining previous court cases pertaining to this portion, it is nearly impossible to judge the intentions of the factor. For example, is the intention to promote use of unpublished, creative copyrighted material, such as original illustrations, or is the intention to encourage fair use when dealing with noncreative proven information, such as facts about military history?

According to Court rulings, the "nature' component of this criterion refers to the level of creativity of the original work. In Harper & Row, Publishers, Inc. v. Nation Enters., the Court ruled that fact-based works such as historical accounts allow for broader use without permissions under the fair use stipulations (471 U.S. 539, 563). The idea, then, is that the fair use guidelines favor the free and fair use of published, factual works, and shows less favor toward the use of unpublished, dramatic works of expression (Madison, 1527).

This too, however, can be misleading. For example, when using unpublished, dramatic works, such as a play, for the purpose of non-profit educational purposes, the fair use standards are generally applied. Therefore, if a school were to use a local author's play for the purpose of teaching dramatic dialog, a Court would likely find that the use of the play falls under the fair use standards. If, on the other hand, the same play were to be used in the private educational system, such as a for-profit religious prep school, there would be a smaller tendency to apply fair use standards, since the institution is commercial in nature.

The third criterion for fair use is the "amount and substantiality of the portion used in relation to the copyrighted work as a whole" (17 U.S.C. 107, n.1). Again, this criterion in and of itself is extremely vague. Note that the statement does not express the amount of material that can be used without infringing on copyright ownership, but instead simply implies there is some form of limit. Additionally, the implication is made that extreme distortion of a copyrighted work will allow the use of the work in a way that falls under the fair use guidelines (Webber, 68).

Consider, however, the use of copyrighted artwork in a public school system. If the artwork were used, wholly in tact, as a part of a student's own art design, the purpose would likely be considered illegal. However, if a student were to distort the image to an extreme degree, or use only a portion of it within his or her own image, the purpose would likely be considered legal. Note that in both cases, someone else's artwork is used in the process of creating a new piece of art, but it one case, is legal, and in another, is illegal. This hardly constitutes fair use.

The final criterion is that of "the effect of the use upon the potential market for or value of the copyrighted work." In other words, if by using the copyrighted work, the potential users will negatively influence the potential market of the original copyright holder, the purpose of use is generally considered illegal without copyright permission. On the other hand, if by using the copyrighted material, the intended user will enhance or not affect the market of the original work, the use may be considered under the fair use statements (Cheskis, 16).

While this statement is the least vague of the four criteria, it is still problematic. Consider, for example, the use of a marketing image in a piece of artwork. If an artist were to incorporate the image of a company's logo into a piece of art that was positive, the art may boost sales of the product, and thus, may fall user the fair use standards. On the other hand, if the same artist used the same logo in a piece of art that was critical to the company, and thus may negatively impact sales, the purpose of use would probably be considered illegal under the fair act standards. In both cases, again, the same logo is being used within the same artists work, and yet one use is considered legal while the other is considered illegal (Webber, 71).

These statements are vague enough when taken one at a time, but when accounted for together, they represent a vast chasm of possibilities that are based on personal interpretation and relativity. Even courts cannot seem to agree on what constitutes legal use under the fair use statements. In Eveready Battery Company v. Adolph Coors Company (765 F. Supp. 440), Eveready sued Coors for copyright infringement, since their beer commercial used a parody of the Eveready Bunny. The Court in the case found that, even though the use of the parody was for commercial use, and even though the parody obviously used concepts from the Eveready campain, the end result was not copyright infringement, and was in fact, covered under fair use (765 F. Supp. 440). In Tin Pan Apply, Inc. v Miller Breweing Company (737 F. Supp. 826), however, Miller parodied the style and lyrics of music by artists represented by Tin Pan Apple, and lost the case. The Court specifically noted that the violation of "fair use" was deemed so since the entire purpose of the parody was to profit (737 F. Supp. 826). In both cases, characters or personas were parodied in a commercial enterprise, and yet one was found legal, while the other was found illegal.

By examining a hypothetical situation, we begin to see why more strict copyright infringement laws are necessary. In this example, an instructor at a public school wishes to teach her students about illustrative techniques. The instructor uses a tuna company's mascot to illustrate certain points about illustrative concepts, and asks the students to incorporate their own ideas, and create an illustration. One student chooses to draw a… [END OF PREVIEW]

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