History MediaNotes / FairUse

There are occasions when parts of a work still under UsefulNotes/{{copyright}} and UsefulNotes/{{trademark}} may be legally used or copied even without the copyright holder's permission.

The technical term from UsefulNotes/{{copyright}} law to refer to something -- a book, a song, a motion picture, a computer program, a play, a photo, or anything else we consider art -- is "work"; this is one reason we use this term on this very wiki.

** There are often Website/YouTube videos where someone takes scenes from a movie to point out errors in the film; such uses would generally be considered fair, especially as the use is not for profit.

* West Coast disc jockey Music/RickDees 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)

** But the character of the use does matter as much as the amount. See ''Harper & Row'' vs. ''The Nation'' below. ''The Nation'' printed just a short excerpt of a book, but printing it removed any reason to read the book itself... [[NotScreenedForCritics This is one reason studios sometimes won't let critics see a film before the general public can]] -- especially if the studio thinks the critics will hate the work.

* 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 his 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 the company makes video recording devices ''and'' operates studios.)

* 2 Live Crew recorded a parody of Roy Orbison's "Oh, Pretty Woman" and released it on their album ''Clean As They Wanna Be'' despite being refused permission by the copyright owners Acuff-Rose Music to actually do so. In a unanimous decision, the Supreme Court found that parodying copyrighted work, even if the parody is of a commercial nature, is a sufficient defence for fair use. This is why Music/WeirdAlYankovic can release so many parodies (but gets permission to stay friendly with artists). It's also the go-to citation for anyone who receives DMCA threats. ''Campbell'' v. ''Acuff-Rose Music, Inc.'', 510 U.S. 569 (1994)
* 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}}s of fictional products. Adolph Coors Brewing Co. decided to do a beer commercial in which Creator/LeslieNielsen 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 Music/RickDees 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 Nation'' magazine used 300 words from President Gerald Ford's 30,000-word memoir (the ones about pardoning Nixon... i.e., [[JustHereForGodzilla the part people would be buying the book to read]]) in its review of the book. Harper & Row, the book's publisher, felt that this use was not fair and sued. The original court agreed, and the U.S. Supreme Court upheld the decision, deciding (among many factors) that while news reporting usually is a strong factor in being fair use, that the magazine is for profit is a factor against this, but mostly that the 300 words represented "the heart" of the work and thus the use was not fair. ''Harper & Row'' v. ''Nation Enterprises'', 471 U.S. 539 (1985)

The question of how much and what you can borrow as fair use has kept many lawyers and others awake at night, either because they're worried about whether a use of someone else's work is fair or because they're trying to argue that a use of their client's work is not fair.

** But the character of the use does matter as much as the amount. See ''Harper & Row'' vs. ''The Nation'' below. ''The Nation'' printed just a short excerpt of a book, but printing it removed any reason to read the book itself... This is one reason studios sometimes won't let critics see a film before the general public can -- especially if the studio thinks the critics will hate the work.

** 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 Parod|y}}ies

* 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}}s of fictional products. Adolph Coors Brewing Co. decided to do a beer commercial in which LeslieNielsen 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 Creator/RickDees 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)

* While J.K. Rowling was able to stop a man who was developing an encyclopedia on her Literature/HarryPotter series after having creative differences, she was less successful in getting a court in India to stop someone from using a name similar to Harry Potter in his book. She was, however, cleared of an accusation of infringement by [[Literature/TheLegendOfRahAndTheMuggles another author]] who [[BlatantLies supposedly]] used the term "muggles" to refer to people who are not wizards.
* 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 Nation'' magazine used 300 words from President Ford's 30,000-word memoir (the ones about pardoning Nixon... i.e. [[JustHereForGodzilla the part people would be buying the book to read]].) in its review of the book. Harper & Row, the book's publisher, felt this use was not fair and sued. The original court agreed, and the U.S. Supreme Court upheld the decision, deciding (among many factors) that while news reporting usually is a strong factor in being fair use, that the magazine is for profit is a factor against this, but mostly that the 300 words represented "the heart" of the work and thus the use was not fair. ''Harper & Row'' v. ''Nation Enterprises'', 471 U.S. 539 (1985)
* 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.)

When someone registers audio with the U.S. Copyright Office, he/she registers said audio as the most encompassing of these three that he/she can honestly claim rights to. The person registering it also retains rights to every lesser level of ownership. (So an "arrangement" covers both the song's "arrangement" and "sound recording," and a "music" covers all three - "music," "arrangement," and "sound recording.")

** 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 [[IndecisiveParody Indecisive Parodies]].

* ''The Nation'' magazine used 300 words from President Ford's 30,000-word memoir (the ones about pardoning Nixon... e.g. the part people would be buying the book to read.) in its review of the book. Harper & Row, the book's publisher, felt this use was not fair and sued. The original court agreed, and the U.S. Supreme Court upheld the decision, deciding (among many factors) that while news reporting usually is a strong factor in being fair use, that the magazine is for profit is a factor against this, but mostly that the 300 words represented "the heart" of the work and thus the use was not fair. ''Harper & Row'' v. ''Nation Enterprises'', 471 U.S. 539 (1985)

!!WARNING: This page is for US readers only.

'''The concept of "fair use" is unique to US law. Other countries have specific and much narrower "copyright exceptions" rather than a general principle of "fair use". If you think you can do what's described here outside the UK and claim "fair use", be ready to get sued.'''

''There are occasions when parts of a work still under UsefulNotes/{{copyright}} and UsefulNotes/{{trademark}} may be legally used or copied even without the copyright holder's permission.''

In simple terms, "fair use" (also called "fair dealing" in the United Kingdom) is the ability of a third party to use a part of another work without the permission of its copyright owner, and without being guilty of copyright infringement.