Q: I am an educator who set up a 501(c(3) to teach American history through the music of Gershwin, Berlin, Cole Porter, etc. by narrating film clips of their movies. Mrs. Gene Kelly inquired how I have the right to use these film clips without permission. I have prepared a letter in response and was looking for intellectual property expertise to review it.
A: As a general matter, one of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies.
This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use” which recognizes that certain acts of copying as defensible as “fair use.”
The doctrine of fair use has developed through court decisions over the years and has been codified in section 107 of the Copyright Act.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use constitutes fair use of copyrighted material:
1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2) the nature of the copyrighted work;
3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4) the effect of the use upon the potential market for, or value of, the copyrighted work.
The fair use statute itself indicates that nonprofit educational purposes are generally favored over commercial uses.
In addition, the statute explicitly lists several purposes especially appropriate for fair use, such as criticism, comment, news reporting, teaching, scholarship, or research.
However, not all nonprofit educational uses constitute “fair use.” A finding of fair use depends on an application and weighing of all four factors, not merely the purpose prong.
A finding of fair use depends on an application and weighing of all four factors. As you can see, the analysis is inherently fact specific and is decided on a case-by-case basis. The distinction between what is fair use and what is infringement in a particular case is often not clear or easily defined.
The US Copyright Office also provides some information on the doctrine of fair use.
If you would like to find an attorney to represent you or provide feedback on your letter, the Orange County Bar Association has a Lawyer Referral and Information Service.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues. But we cannot provide specific legal advice or representation unless separately retained.