{"id":505,"date":"2023-02-20T14:14:50","date_gmt":"2023-02-20T14:14:50","guid":{"rendered":"http:\/\/blogs.harvard.edu\/copyrightosc\/?p=505"},"modified":"2023-02-20T14:14:50","modified_gmt":"2023-02-20T14:14:50","slug":"fair-use-week-2023-10th-anniversary-day-one-with-guest-expert-kenneth-d-crews","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/2023\/02\/20\/fair-use-week-2023-10th-anniversary-day-one-with-guest-expert-kenneth-d-crews\/","title":{"rendered":"Fair Use Week 2023 (10th Anniversary): Day One With Guest Expert Kenneth D. Crews"},"content":{"rendered":"

I am delighted to kick off the 10th Anniversary of Fair Use Week<\/strong> with a guest post by expert colleague and long-time friend to Fair Use Week, the international copyright authority Kenneth D. Crews. Join him in an exploration of the “many breeds of fair use”\u00a0 -Kyle K. Courtney<\/em><\/p>\n

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The Many Breeds of Fair Use<\/strong><\/h2>\n

Kenneth D. Crews<\/p>\n

Surely everyone reading this post has grappled with the uncertainty of fair use.\u00a0 You know the feeling \u2013 finding only a blurred landscape<\/a> when you just want focused details<\/a>.\u00a0 It is time to confront the pesky truth we too often avoid fair use is a beast of many breeds.\u00a0 You cannot see fair use clearly because many disparate versions fill the scene simultaneously.\u00a0 You might be hoping to spot one confident creature standing firmly on four legs<\/a>, when fair use is actually a busy menagerie<\/em> of friendly and wild species.<\/p>\n

Deciding fair use cases begins with those sturdy four factors<\/a> in the statute.\u00a0 I have had the privilege through more than three decades to work with the factors from various perspectives and as applied to diverse needs and circumstances.\u00a0 I have counseled authors and publishers in quest of the border between infringement and permission.\u00a0 I have advised innovators scraping content from the internet.\u00a0 I have evaluated music clips in video productions.\u00a0 I have guided parties using copyrighted materials in the heat of a tense election campaign.\u00a0 I have given green lights and cautionary guidance, and I have needed to gracefully break the news when my evaluation may not be what someone is hoping to hear.\u00a0 The fair use analysis is never the same, producing a diversity of forms.<\/p>\n

Breed #1: The Two Parties<\/em><\/strong><\/h3>\n

The fundamental variety of fair use reflects the two parties confronting one another: the copyright owner and the user.\u00a0 Even in cases that seem to be about the similar facts, these leading parties bring their own experiences, values, and priorities.\u00a0 An advocate of fair use may be building a business or trying to write a better history book.\u00a0 The critic of fair use may be trying to optimize revenue or seek to protect private documents or retain control of how or when they are used.\u00a0 Either party may be driven by strong philosophical views on the level of protection and use that copyright law ought to support.\u00a0 As a result, each analysis and each conclusion can be distinct \u2013 even when the facts look like the same beast.<\/p>\n

These two leading parties usually absorb most of the attention.\u00a0 Indeed, the four factors are fundamentally about those two parties.\u00a0 The user\u2019s purpose is at the center of the first factor, and the user\u2019s decisions and actions shape the third factor.\u00a0 The copyright owner\u2019s economic interests are the salient feature of the fourth factor, and the author or copyright owner is usually the party that defines the nature of the work in the second factor.\u00a0 This two-party breed is as diverse as we can imagine the different facts, but this breed is also the version that is most likely to be played out in a court of law.<\/p>\n

Breed #2: Community Interest<\/em><\/strong><\/h3>\n

The two leading parties may well give birth to a flock of fair use offspring, but sometimes it takes a whole barnyard<\/em> to raise then right.\u00a0 To speak of just two parties is to overly simplify a complex matter and to miss the potential nuance of the law\u2019s application.\u00a0 Most important, many fair use decisions have immediate and profound consequences for the wider community, far beyond the interests of just two parties.\u00a0 This is the \u201ccommunity breed.\u201d<\/p>\n

Different works and different situations affect the public in different ways.\u00a0 When HathiTrust<\/a> is allowed to build a vast collection of digitized books<\/a>, the public benefits from the new way of identifying and accessing books.\u00a0 When an author can use pictures and quotations in a biography, the public benefits from the new publication with the added content that adds depth and character.<\/p>\n

Fair use also has its limits, because enable authors to protect their creative work can also foster benefits far beyond the owner and user who are engaged in the fair use debate at hand.\u00a0 No factor in the statute is explicitly or primarily about the public or anybody else, but courts do take the public interest under consideration as they apply the factors.\u00a0 Infusing the evaluation with the public interest can change the genetics and the legal outcome.<\/p>\n

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Breed #3: The Good Faith Determination<\/em><\/strong><\/h3>\n

The law of fair use may center on the for factors, but the U.S. Copyright Act includes a protection for the benefit of educational institutions, libraries, and archives<\/a> that can eliminate statutory damages<\/a> \u2013 one of the most significant financial infringement risks \u2013 if the court determines that the user believed, and had reasonable grounds to believe, that the use was within fair use.\u00a0 This is yet another breed of fair use because it is an evaluation that gains legal recognition and offers significant protection for the user.\u00a0 In most any application, the case will be based on the four factors, but the law adds new variables that establish the good faith effort.\u00a0 This application of the law applies explicitly when the use is not fair, but nevertheless if offers such extensive protection that it may well bring any copyright clash to a quick resolution.<\/p>\n

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Breed #4: The Worthy Risk<\/em><\/strong><\/h3>\n

Any decision about fair use has some element of risk.\u00a0 The previous Breed #3 that is based on the user\u2019s belief about fair use is necessarily built on calculation, evaluation, and the vagaries of the user\u2019s subjective state of mind.\u00a0 This Breed #4 dares to explore opportunities on a distant range with little traditional guidance.\u00a0 It is exercised when needs and circumstances are innovative and untested by law, or where existing legal precedent offers little relevant support and clarification.\u00a0 This is the breed of fair use that occurs in the laboratories of creativity, in the debates and decisions of corporate boards, and in the privileged explorations with legal counsel.<\/p>\n

This breed may not itself have the force of law, but every court ruling begins with someone choosing to venture into the unknown.\u00a0 Picture the boardroom years ago as Google executives decided to build a collection of millions of digitized books<\/a>.\u00a0 Imagine the lively conversations when rap artists and their production company chose to release a provocative parody<\/a> of the \u201cPretty Woman\u201d song, knowing that the copyright owner has already objected.\u00a0 Consider just the common questions about fair use and online education, where the legal questions remain unresolved, but the need to expand programming is intense.<\/p>\n