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Fair Use and the Public Domain- Module 3 of 5

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Module 3-Fair Use and the Public Domain

A copyright owner has total control over the use of his work. He can reproduce it, create derivative works, and perform or display it publicly. In most circumstances, if another party wants to use a copyrighted work for any purpose, he must first obtain a license from the copyright owner. There are exceptions to this requirement.

In this module, we’ll delve into these exceptions and define the two ways of how someone can use another’s copyrighted work without first acquiring a license: the “fair use” exemption and using works in the public domain.

Fair Use Doctrine

The fair use doctrine emerged in copyright law as a recognition that some uses of copyright protected material are too important for the public benefit to make them totally subject to the control of copyright owners. Fair use is not a license and parties who make fair use of copyright protected material are acting without the copyright owner’s consent. If a copyright owner initially objects to another party’s use of his material and enforces his rights in federal court, the party using it can claim fair use as a defense to a copyright infringement claim. The court will then determine whether the fair use exemption applies. 

The court will reach its decision after evaluating the specific facts associated with the controversy.  If the court agrees with the fair use argument, then the defendant in the copyright action can continue to use the material for his intended purposes.  If the court rejects the fair use defense, then the defendant must cease use of the material until he receives permission from the copyright owner. 

Courts evaluate the fair use defense by examining the following facts specific to each incident:

·       purpose of the use of the material;

·       the nature of the protected work;

·       the use’s scope; and

·       the use’s commercial impact

When a court considers the purpose of the use, it examines why a party is using the copyrighted material without first obtaining a license.  If this party uses the material for non-commercial purposes, a court is more likely to find fair use. For example, in Universal City Studios, Inc. v. Sony Corp. the Supreme Court of the United States examined Sony’s sale of Betamax video tape recorders and whether the promotion of these constituted copyright infringement because buyers could record copyrighted TV shows and then watch them later. The Court concluded that off-air video recording of television programming by individual television viewers for their own personal use qualified as fair use of the copyrighted television programming content.[1] Here, private viewers who recorded broadcasts and viewed them later didn’t act with a malicious purpose or to cause commercial harm to television studios. Viewers used Betamax to record television programs to watch it at a more convenient time, so the product was “widely used for legitimate, unobjectionable purposes…”

Transformative Uses

Sometimes, a party uses the copyrighted material in such a way as to “transform” its nature.  Transformative use of the copyrighted material occurs when a subsequent party changes the meaning or expression of the copyrighted work.  When copyright protected material has been subjected to transformative use, there is a strong argument that the use of the material qualifies as fair use. Transformative use doesn’t violate copyright law because it involves substantial and creative uses which are alter the meaning of the work or the setting and context in which it is presented enough so that a new work appears.

An example of transformative use is a parody, which transforms a copyrighted work to make it more humorous. The parody’s author will be altering it to such an extent that he’s changing what the original copyrighted work is and does. Although parodies are generally more likely to receive fair use protection than are satires, that protection is not absolute. 

In one case that went before a federal district court in Georgia, Topps claimed fair use after it created and marketed a line of merchandise as the “Garbage Pail Kids,” a parody of the popular “Cabbage Patch Kids.” The creators of the “Cabbage Patch Kids”, Coleco, sued Topps, claiming copyright infringement. Topps argued that it’s use of Coleco’s copyrights was transformative, so it was protected by the fair use doctrine. 

The court disagreed and wrote there is “a fine line between parody and piracy.” Here, that line had been crossed because Topps presented its parody entirely for commercial purposes, and not for any strictly humorous purposes. Topps created the stickers and other merchandise as an attempt to make money, and not simply to make the Cabbage Patch Kids appear more humorous, so Topps violated the intellectual property rights of the Cabbage Patch Kids copyright holders.[2]

In Castle Rock Entertainment, Inc. v. Carol Publishing Group, the Second Circuit examined whether a Carol Publishing’s publication of a book of trivia questions based on the “Seinfeld” television series was a fair use. The book contained over 600 trivia questions about the series. The court found that since the book was based entirely on the creative work of television series’ writers and did not alter their material in any way, the book wasn’t transformative. Accordingly, the court rejected the fair use argument in this context.

Other Elements of Fair Use

The second element a court analyzes when evaluating whether there has been fair use is the nature of the copyrighted work. For example, is the work subsequently created and claiming fair use informative, like a news article, or is it entertaining, like a motion picture? A court will be more likely to find fair use when the subsequent use is of an informational copyrighted work rather than an entertaining work because a broader distribution and dissemination of informational material will promote a steadier communication of ideas, information, and knowledge.

Another important aspect of the evaluation of the copyrighted work’s nature is whether it has been previously published. If the work has not been published, a finding of fair use is less likely because courts are particularly sensitive as to the creator right to control the first public presentation of her work. This was analyzed in the case of Salinger v. Random House.  At issue in that case was whether Random House could publish paraphrased portions of unpublished letters written by J.D. Salinger, author of the acclaimed The Catcher in The Rye.  In that case, the court emphasized the nature of Salinger letters, that they were hidden and to remain unpublished. It reasoned that if a work is unpublished, the author conveys the message that he doesn’t want his work to be copied or retransmitted, so any later copying shouldn’t be protected by fair use.[3]    

Third in the analysis is an examination of the scope of the use of the copyrighted material.  Part of this involves review of the amount of the copyrighted material used by the party claiming fair use. The greater the amount of his use of the copyrighted work, the greater the likelihood that his use violates copyright law.

Finally, a court will examine the commercial impact of the use of the copyrighted material, meaning it analyzes the potential future commercial impact on the copyright owner likely to result from the fair use of the material.  If the intended use of the material is likely to have an adverse commercial impact on the interests of the copyright owner, then courts are less likely to decide there has been fair use.

In the case, Los Angeles News Service v. KCAL-TV Channel 9, the Ninth Circuit Court of Appeals provided a useful fair use analysis.[4]  The copyrighted material at issue in this case was video that capture the beating of Rodney King by police.  KCAL obtained a copy of video of the beating which had been previously broadcast by another television station.  KCAL argued that its re-broadcast of the video was fair use as the video provided the public important newsworthy information.  The most critical element in the analysis was the fourth, commercial impact. The Ninth Circuit court determined that KCAL’s broadcast of the video had an adverse commercial impact on the station that held the copyright to video because it lost potential licensing revenue associated with the video.  In this case, the Ninth Circuit concluded that KCAL’s re-broadcast of the video was not fair use.

Works in the Public Domain

The public domain is something that we enjoy every day without thinking about it.[5] Shakespeare’s plays are in the public domain and may be freely copied, adapted, and performed by anyone. Transportation devices like the car and airplane, and communication tools like the computer and telephone are derived from works in the public domain. Students and scholars debate historical events, and sports fans discuss their favorite teams’ best free agent signings or trades.

The public domain consists of all creative materials that are currently accessible to the public and aren’t protected by intellectual property laws. Anyone can use a work in the public domain without obtaining permission. Without the public domain, a creative material’s owner could prevent many later authors and creators from gaining access to his work by denying other parties permission to use it. The public domain allows leeway and permits creativity within the rigid structure of copyright law.

The first work included in the public domain is a non-fixed work, an idea not yet expressed in some tangible, concrete, and stable medium, such as written form. Second, the public domain includes ideas and facts that aren’t copyrightable, for example, the date of signing of the Declaration of Independence, or the trade of two NBA players. Third, the public domain includes all materials that were once protected by copyright, but the copyright expired. For a copyrighted work created prior to the effective date of The Copyright Act of 1976, the copyright lasts for a maximum of ninety-five years from the date of publication. For works created after the 1976 Act, copyright lasts during the author’s lifetime plus an additional seventy years. Once the copyright expires, the material enters the public domain. Fourth, the public domain consists of works that the creator has forfeited or has abandoned the copyright to. Like a landowner who fails to take care of his property, or a personal property owner who abandons his chattel, the author who fails to take care of his work allows rightful “title” to end up in the public’s hands. A copyright owner forfeits his copyright when he fails to maintain his copyright. Abandonment occurs when the copyright owner intends to surrender right to the work and takes an overt act furthering this intent, such as writing a statement relinquishing any copyright interest in a work.

Fifth, instead of seeking a copyright, a work’s creator can dedicate her work to the public domain, effectively donating it.  The copyright owner is deciding not to enforce her copyright rights and is granting a universal license to all users at no charge instead of an actual transfer of ownership of the copyright.

No matter how she donates her copyright to the public domain, the public can use the material without paying a license fee or asking for permission. A popular example of materials deliberately made available for public use are collections of “clip art.”  Clip art consists of pictures, photos, illustrations, and symbols made available for computer users to add to their documents or for publication in written materials.

Finally, when a United States federal government employee creates or writes material as part of his official job duty, that material becomes part of the public domain. For example, John is a Department of State foreign service officer who works at the U.S. embassy in Kenya. Whenever he writes a report on Kenyan politics or the nation’s economic needs with research he conducted during his work, he doesn’t establish copyright rights in that work.  Instead, his reports immediately become part of the public domain, accessible and reproducible by all. However, if in his free time, John pens a guest column for an online newspaper on the upcoming Kenyan presidential election, that article is considered to have been created outside of the scope of his employment. As a result, he is entitled to full copyright protection for his published article.

It is often difficult to determine what materials are part of the public domain.  There is no single listing or inventory of all public domain materials.  Each work must be investigated to assess the likelihood that it is available as part of the public domain. Prior to using materials believed to be in the public domain, an active, good faith search should be conducted to identify any, and all, copyrights associated with the work. Even without either of these, it’s not conclusive that a work is in the public domain. Copyright law has an extremely broad reach and it’s a safe assumption that all creative works are subject to copyright laws and not in the public domain. 

Once an author incorporates aspects of a public domain item into a new, copyright-protected work, the copyright laws apply to that new, integrated work.  Returning to the example of John, the foreign service officer. He attends an election rally in Nairobi and takes several photographs of attendees at the event for a report he is writing as part of his job. These photos are part of the public domain because he took them in anticipation of writing a report. Three months later, Lisa, a documentary film producer, decides that her next film will be on democracy in Africa. For her film, she can use the photographs that John took and include them in her film without obtaining a license from John or the Department of State. However, once she completes and produces the film, the visual representation of the photograph as part of the film is subject to the film’s copyright that she owns. Thus, while another filmmaker could use the original photograph as part of his film without a license or authorization, that second filmmaker could not use the image of that same photograph captured from Lisa’s documentary film without getting a license from Lisa.

          Our next module continues the course with a discussion of licensing and transferring copyright protection.

[1] Universal City Studios, Inc. v. Sony Corp., 464 U.S. 417 (1984)

[2] Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc., 642 F. Supp. 1031 (N.D. Ga. 1986)

[3] Salinger v. Random House, 811 F. 2d. 90 (2nd Cir. 1987)

[4] Los Angeles News Service v. KCAL-TV Channel 9, 108 F. 3d 1119 (9th Cir. 1997)

[5] Tyler Ochoa, “Origins and Meanings of the Public Domain,” 28 Dayton L. Rev. 215, (2002).