Report on Copyright Laws & Fair Use for Profit

By Tom Chmielewski
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While U.S. copyright law provides for the “fair use” of material from copyrighted work, the definition of fair use is not hard and exact. The use of a single sentence from a book can be considered an infringement, for instance, if it gives away the climax in a novel. An entire chapter, however, can be ruled fair use. If a portion of a copyrighted work is to be included in a new work sold for profit, the restrictions on fair use are greater.

Fundamental Rights Protected

U.S. copyright law gives five fundamental rights to copyright owners. These are exclusive rights to reproduce, adapt, publish, perform and display the copyrighted work. But according to the U.S. Copyright Office Circular 21, “Reproduction of Copyrighted Works By Educators and Librarians,” these rights are stated generally, leaving claims of infringement open to legal interpretation. The fair use provision in the law allows excerpting and reproduction under limited circumstances for comment, criticism, educational, scholarship or research purposes.

Interpreting Fair Use

Among the major factors courts consider in infringement cases are the purpose and character of how an excerpt of a copyrighted work is used. Copying and excerpts of copyrighted material can be used for a limited and “transformative” purpose, though the term is purposely vague and ambiguous so as not to limit the definition of fair use, according to Stanford University Libraries and Academic Information Resources,. The University of Texas Libraries’ website explains it as using portions of a copyrighted work in a new way or for a different market than the one for which it was originally intended. Using a thumbnail of a model’s photo for a news article or in a search engine is not an infringement of a photographer’s copyright, but using the photo for a commercial poster clearly is. A parody of a work is protected as a transformative purpose, as are quotes, images, or samples of audio used in an article of criticism or commentary.

Character of Use

Part of determining the transformative nature of the new work that uses an excerpt is determining its market. Copyright statutes and common law give greater credence to nonprofit, education or personal uses than one intended for a commercial profit. Appropriation of a character from a novel to use in a new work of fiction by a different author would not meet be the transformative standard unless the new work is a parody. Using a tune from one song and attaching it to another without permission is also a copyright infringement.

How Much is Too Much?

Other factors courts can consider are the nature of the original work, the amount of the work excerpted and the substantiality of the portion as it relates to the entire copyrighted work. Excerpts from a nonfiction work are more likely to be judged as fair use than one than one from a fictional or imaginative work. Copying articles in their entirety by an instructor to hand out to students would likely meet the fair use standard. Compiling the same articles and selling them in the campus bookstore would not, even if they were sold to the same class.

Market Impact

Copyright protects the market value of an author’s work. Excerpts used in criticism are allowed even though the criticism could could ruin the market for a work because criticism and commentary serve a higher public purpose. But spreading copies of songs across the Internet, writing a novel that substantially mimics a copyrighted work or quoting an author’s work before it is published can so undermine the market for the original works that they are routinely ruled an infringement of copyright.

About the Author

Tom Chmielewski is a longtime journalist with experience in newspapers, magazines, books, e-books and the Internet. With his company TEC Publishing, he has published magazines and an award-winning multimedia e-book, "Celebration at the Sarayi." Chmielewski's design skills include expertise in Adobe Creative Suite's InDesign and Photoshop. He holds a Bachelor of Arts in English from Western Michigan University.