[GONG]
SPEAKER: Fair use is based on this.
And if any of you are a little bit constitutionally savvy,
you'll recognize this as the First Amendment
to the Constitution.
And that allows us to do these kinds of things,
to teach, to do research, to report newsworthy events,
and finally, to produce criticism of other things.
Without the First Amendment, and without fair use,
these things would not be possible without permission
of the copyright owner.
But obviously, if you see something newsworthy,
you can not report it because you
need to get permission of the person who did it.
So these are the four factors of fair use.
And I put them in this order, which is not the words
they're in the law, because they have a nice little acronym
PANE, P-A-N-E--
Purpose, Amount, Nature, and Effect.
And purpose is, first of all, how you're using the work.
Has your use of the work added something to it
or merely copied it.
Just copying something does not make it
a good purpose in this case.
Have you added value by creating new information, new insights,
or new understandings?
And there's a good summary of all of this
on the Standard Fair Use page.
And I recommend that to anyone who is interested.
But purpose is basically about how
you're going to use the work.
And within purpose come this notion of transformative work
or transformative use.
And I'll give you two examples.
One is Sun Trust versus Houghton Mifflin.
Sun Trust is the owner of Margaret Mitchell's estate,
and therefore, her copyrights.
And Houghton Mifflin is the publisher
of a semi-sequel to Gone With the Wind called The Wind
Done Gone, which focuses on the African American characters
in that book.
This will found to be fair use by the way.
Another case that you're probably more familiar with
is Shepard Fairey parody, if you will,
of an Associated Press image of Barack Obama.
This was not found to be fair use.
So this is another thing to be wary of with fair use is
it's a defense used in court.
It's not a right.
The second factor is nature.
And this has to do with the type of work you're using,
not how you're using it.
So the law intends to protect creative works more so
than it protects factual works.
So the type of work you're using, if it is poetry, music,
or drama, or things that tend to be more creative,
is more likely to infringe.
And if you are dealing with new reporting or more
factual things, it is less likely to infringe.
So that's kind of a continuum on which the nature of what
you're using may rest.
Number three is the amount of that work you're using.
Now, in many cases, people use the entire work.
But it might not be necessary.
And if it's not necessary, amount
is actually something that works in your favor.
If you notice, on the internet, when
you click on things in iTunes, you
could usually listen to the first 30 seconds
without having to pay for it.
And that's, in a way, how iTunes uses fair use as an advertising
thing to let you sample something.
So amount is important.
And less is more here.
The less you copy, the more likely your use is to be fair,
unless--
and this comes down to criticism in particular--
Unless you take the heart of the work.
So if a new Harry Potter book were to come out,
and you were to write a review of that book
and give away the ending, you might
be liable for infringement.
Because you have taken the heart of the work.
And finally-- this is the one people
think is the most important, but it's actually not.
It's just one of four factors, is
the effect of your use on the market for the work.
Now, I reproduce textbooks here because textbooks are easily
measurable.
So in summary, the four factors of fair use--
purpose, amount, nature, and effect--
and the courts typically take all four
of these into consideration, not just one or the other.
So then, I have three questions that Kevin Smith has proposed
that are quite useful ways of testing yourself
about whether something is fair to use.
Will the incorporation of the copyrighted work into my work
help me make my new point?
Will the incorporation help my readers or my viewers
get that point?
And have I used no more than necessary to make my point?
So you can tell, quite clearly, that number three
is about the amount factor.
And the first two are really more about the purpose.
So Kevin hones in on those two things in the three questions.
And they're very useful tests of your own feeling
about fair use.
[GONG]