Just Because Something Is Used For Profit, It Can Still Be Fair Use

from the so-the-court-says dept

When it comes to copyright, content owners all too often believe it gives them a lot more control than it really does. For example, there's a belief that no one can ever use the content under "fair use" rules if it's for a commercial for-profit venture. One of the issues with fair use (which some in the entertainment industry continue to pretend doesn't exist) is that people often misread the four tests of fair use to believe that any commercial usage is not covered by fair use. Larry Lessig is pointing to an Appeals Court ruling highlighting why this isn't always the case. In the specific case, the Bill Graham Archives sued a book publisher for publishing a book about the Grateful Dead, using images of concert posters that were owned by the Archives. While the pictures are clearly being used for a commercial work, the court found that it was fair use. Specifically, they note that since the images are small and used within the context of descriptions about the history of the band, it's fine for fair use. It seems like a reasonable decision -- but could worry some copyright holders who freak out any time anyone uses their works in any way.

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  1. identicon
    Jeff G., 19 May 2006 @ 6:59am

    Re: this isn't as easy as you make it out to be...

    Besides the obvious answer (given above) of "read the law" (fair use is written into the copyright act), there are any number of reasons why copyrights and works are not like hotels and cars.

    An economic reason is exclusivity of use. Only one person can use a car at a time and use of the car degrades the physical item. For a song, all of us here can listen to the song and it doesn't degrade it in any actual sense. This alone is reason to justify a difference in treatment for unauthorized uses.

    Unlike a car, if the law allows unauthorized use, there is no fear that the work itself is being harmed. Whereas, with a car, if the law allowed unauthorized uses, the owner would be deprived of the full enjoyment of the physical item (this is why we have federally mandated mileage-reimbursement rates - to require companies to pay for over-use of an automobile caused by the company). With a song, if I use the work without your permission the song itself is not harmed. Thus you can still get full enjoyment.

    The fair use analysis assures that my unauthorized use does not substantially cut into your economic enjoyment. But, economic enjoyment is just the benefit of the law - the PURPOSE of the law is "to promote the progress of science and the useful arts." Thus economic enjoyment will be derogated where the "fair use" promotes the progress of science and the useful arts but does not substantially interfere with the economic enjoyment of the work by its creator.

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