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Fair Use Article

Fair Use Article

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Published by Mark Litwak
article on fair use
article on fair use

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Published by: Mark Litwak on Oct 24, 2009
Copyright:Attribution Non-commercial


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What is Fair Use?
By Mark Litwak, Attorney at LawMany writers and filmmakers are confused about the fair use doctrineand whether they need permission to borrow from copyrighted works.If the fair use doctrine applies, no license is needed to borrow from acopyrighted work. It gives the public a limited right to draw uponcopyrighted works to produce separate works of authorship. Such usesinclude fair comment and criticism, parody, news reporting, teaching,scholarship and research. Thus, a movie or literary critic does not need permission to include a small quote from a work being reviewed. It issometimes said of writers that if you borrow extensively from one author’swork, you are a thief; but if you borrow from hundreds, you are a scholar. Of course, the scholar adds value by synthesizing information from prior worksand creating something new.In determining whether the use of a copyrighted work is fair use,courts weigh four factors: 1) the purpose and character of the work; 2) thenature of the copyrighted work; 3) the amount and substantiality of the portion borrowed in relation to copyrighted work as a whole; and 4) the potential adverse effect on the market for, and value of, the copyrightedwork.1)
The purpose and character of the work 
: A non-profit educational use ismore likely to be considered a fair use than a commercial use. A commercialuse is one that earns a profit.2)
The nature of the copyrighted work 
: There is greater public interest inallowing borrowing for scientific, biographical and historical works than for entertainment works.3)
The amount and substantiality of the portion borrowed in relation tocopyrighted work as a whole
: Taking one sentence from a five hundred page book is more likely to be considered a fair use than taking a sentence from aten line poem.4)
The potential adverse effect on the market for, and value of, thecopyrighted work 
: If borrowing from the copyrighted work harms the marketfor it, the use is less likely to be considered a fair use. Borrowing a sentencefrom a novel and incorporating it in another, completely different kind of work, such as a scholarly work, is unlikely to have any effect on sales of thenovel. Likewise, borrowing from a book that is out of print is not likely to
have an adverse impact on its sales.In applying these factors to a specific factual situation, it can often bedifficult to predict whether a use will fall within the doctrine. Generallyspeaking, a greater amount of material may be borrowed from non-fictionworks than from fictional works. Clearly, a writer can borrow historical factsfrom a previous work without infringing upon the first author’s copyright, because of both the fair use doctrine and because historical facts are notcopyrightable. Moreover, since factual works, unlike works of fiction, may be capable of being expressed in relatively few ways, only verbatimreproduction or close paraphrasing will be an infringement.Writers should be more cautious in borrowing from novels and other fictional works. In one case, the author of the book “Welcome to TwinPeaks: A Complete Guide to Who’s Who and what’s What,” was found tohave infringed the television series “Twin Peaks.” The book containeddetailed plot summaries and extensive direct quotations of at least eighty-nine lines of dialogue.One encounters a lot of grey areas in applying the fair use doctrine. Itis safe to say that a schoolteacher will be protected if she photocopies a Newsweek article and distributes it to her class on one occasion. If theschoolteacher, however, photocopies an entire textbook and distributes it toher students in order to save them the expense of purchasing their own texts,this would not be a fair use. But there are many factual situations that lie between these two extremes; and in those cases it can be difficult to predictwhether the fair use doctrine will be a good defense.Regardless of whether the fair use doctrine may apply, it is always preferable to have a release than risk litigation and incur substantial legalfees to have a court determine whether or not you are within your rights.Studios and insurance companies have become very cautious because of their fear of litigation. Even if they think a suit would be frivolous, they maydecline to acquire your script or film if you are relying on the fair usedoctrine to borrow materials from other authors.
1Mark Litwak is a veteran entertainment attorney and producer’s rep based in Beverly Hills, California. He is 1the author of six books, including 
therecently published 
Risky Business, Financing and Distributing Independent

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