Media Law

This article, reprinted from Desktop Publishing, is presented solely for an educational purpose. Contact the author's publisher for permission to reprint for any other or commercial purpose. -Editor

Multimedia and Fair Use of Copyrighted Material

by Diane Brinson

Generally, using copyrighted material in a multimedia product without getting permission from the copyright owner constitutes copyright infringement, because the owner holds the exclusive right to reproduce, modify, distribute, publicly perform and publicly display a copyrighted work.

For example: Developer Joe scanned Photographer Steve's copyrighted photograph, altered the image by using digital editing software, and included the altered version of the photograph in a multimedia work that Developer Joe sold to the public. If Developer Joe used Photographer Steve's photo without permission, he infringed on photographer Steve's copyright by violating the reproduction right (scanning), modification right (altering) and distribution right (selling).

"Fair use" is an exception to the copyright owner's exclusive rights. The copyright owner's permission is not required for fair use of a copyrighted work. Copyright owners are, by law, deemed to consent to fair use of their works by others. Examples of fair use include: quoting passages from a book in a book review; summarizing an article with brief quotations for a news report; and copying a small part of a work to give to students to illustrate a lesson.

Fair use factors

Unfortunately, it is often difficult to tell whether a particular use of a copyrighted work is fair or unfair. Determinations are generally made on a case-by-case basis by considering four main factors.

Purpose and character of use. The courts are most likely to find fair use when strictly non-commercial purposes are involved. They are least likely to find fair use when the use is commercial. In fact, the Supreme Court has stated that commercial use is summarily presumed not to constitute fair use. While its possible to overcome the presumption that a commercial use is unfair, it can be difficult.

Nature of the copyrighted work. The courts are most likely to decide that a use is fair when the copied work is either a factual work or one that has already been distributed. The courts are far less likely to find fair use when the copied work is creative or fictitious or when the work has never before been published.

Amount and substantiality of the portion used. The courts are most likely to find fair use when what is used is a very small amount of the protected work. When much of the protected work is used, however, the chances of a fair use ruling become slimmer. If what is used is small in amount but substantial in terms of importance-the heart of the copied work-then a finding of fair use is unlikely.

Effect on the potential market for or value of the protected work. The courts are most likely to find fair use when the new work is not intended to serve as a substitute for the copyrighted work. The courts are least likely to decide that a use is fair when the new work is a complete substitute for the copyrighted work.

Is your use fair use?

Obtaining permission to use copyrighted material can be a chore, so you might be tempted to skip the permissions process and just rely on the hope of fair use. Resist the temptation! If you are sued for copyright infringement, defending the lawsuit on fair use grounds will be significantly more of a bother (not to mention an expense) than getting permission would have been.

If your multimedia work serves traditional fair-use purposes, criticism, comment, news reporting, teaching, scholarship or research-you have a better chance of falling within the bounds of fair use than you do if your work is sold to the public for entertainment purposes.

If you are creating a multimedia work for purely non-commercial purposes for example, for use by the American Red Cross for training-you might be able to justify copying small amounts of material as fair use. Copying for educational or public service use may, but will not necessarily, constitute fair use; the other three fair-use factors must be considered. Even if you are creating a multimedia work for an educational or public service group, it's still better to obtain permission. Maybe you can get the copyright owners whose works you use to waive the licensing fee to help a good cause.

If your work is designed for commercial use of any sort-for sale to consumers, for use in retail stores or even for internal training use in for-profit corporations-it will be hard to succeed on a fair use defense.
Diane Brinson, a graduate of Yale Law School, is an expert in intellectual property law, software licensing and multimedia. Copies of her book, the Multimedia Law Handbook, published by Ladera Press, can obtained by calling 800-523-3721.

Multimedia and fair use of copyrighted material is not in the Public Domain. Contact the author's book publisher for more details.

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