What writers and marketers need to know – in simple language
By David M. Freedman and Joseph V. Norvell, Attorney
In most cases, you may not reproduce copyrighted material for your own commercial or promotional use, unless you have permission to do so from the copyright owner. Getting permission is not always possible, though. Fortunately for us journalists, there are some exceptions to the copyright law which allow us limited use of copyrighted material for certain purposes, even without the knowledge or consent of the copyright owner. Those exceptions fall under the fair use doctrine.
By the way, company newsletters, even those that are distributed free, are generally considered commercial or promotional, because their ultimate purpose is to further the business interests of the companies that publish them.
Section 107
The fair use doctrine in the United States derives from the First Amendment to the Constitution, but it was codified in Section 107 of the U.S. Copyright Act in 1976. The doctrine is an attempt to balance the interests of copyright holders, information users, and the public. The doctrine's theory is that we ought to be able to quote portions of copyrighted material in order to report on it (if it's newsworthy), teach it, review it, recommend it, criticize it, or comment upon it.
Fair use analysis If you reproduce copyrighted material in your newsletter without permission, under the assumption that it qualified as fair use, and the copyright owner sues you for infringement, you may attempt to use the fair use doctrine as an affirmative defense. Just because you think your use of the material was fair, however, doesn't mean the judge will too. You'll have to persuade the judge that the following two statements are true:
Your use of the material benefited the readers of your newsletter.
The use resulted in a better understanding or appreciation of the original work.
In addition, the judge will base his or her decision on the following four factors:
Commercial vs. educational nature of the use. The judge is more likely to rule in your favor if you used the copyrighted material for educational purposes rather than to promote a product or service. Judges do understand, of course, that almost all publications have some commercial or promotional purpose, and your use of the material may fall somewhere between purely commercial and purely educational. The U.S. Supreme Court has held, however, that a use that is clearly for a commercial purpose is presumed to be unfair. [Harper & Row Publishers, Inc., v. Nation Enterprises, 471 U.S. 539, 1985]
Fiction vs. non-fiction. It's generally fairer to use factual material, especially if it consists of public-domain information, than fictional material. Courts recognize that the public has an interest in the dissemination of important facts.
The amount used. The judge will compare the amount and substantiality of the portion that was used with the entire original work. The less you use, the better. There is no fixed percentage or rule of thumb, and courts will decide on a case-by-case basis what amount is too much. The best policy is to use no more of the work than necessary to make the discussion accompanying it comprehensible.
Effect on market value of the original work. A use is generally unfair if it results in a lower market value of the original work. That would happen if, for example, the reproduced version of the material is very widely disseminated and serves as a substitute or synopsis of the original.
In the context of a newsletter, the question of fairness boils down to balancing the interests of the copyright holder, the newsletter publisher, and the newsletter readers. To play it safe, get advice from an intellectual property lawyer before you use a substantial portion of any copyrighted material. Better yet, get permission from the copyright holder – not only is that the best protection against an infringement suit, it's also good journalism.
About the authors David M. Freedman is a Chicago-based legal and financial writer. Contact him by e-mail. Joseph V. Norvell is an attorney and founding partner of Norvell IP, in Chicago, which focuses on intellectual property. (www.norvellip.com)
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