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A Fair Use Primer (links)

What is Fair Use? “under many conditions, fair use allows you to copy, display and publish copyrighted works without payment or permission. The doctrine — which complements the First Amendment — helps courts avoid rigid application of copyright law where rigid application would ‘stifle the very creativity which the law is designed to foster.’  Against this backdrop, fair use can be looked at as a balancing act.  It is an imperfect attempt to reconcile the competing ideals of free speech with the property rights of individual creators. While invaluable to both the scholar and the pitchman, it should be noted that fair use is not a right but a defense to copyright infringement.   As such, it should be looked upon as a privilege, and not a right.”  (via Copylaw.com)

It’s not a right, but a defense to copyright infringement. “The difficulty in claiming fair use is that there is no predictable way to guarantee that your use will actually qualify as a fair use. You may believe that your use qualifies–but, if the copyright owner disagrees, you may have to resolve the dispute in a courtroom. Even if you ultimately persuade the court that your use was in fact a fair use, the expense and time involved in litigation may well outweigh any benefit of using the material in the first place.”  (via Stanford University Libraries)

How is Fair Use Determined? “Section 107 of the Copyright Act lists four factors to help you determine types of content usage that may be considered fair use. No one factor alone dictates whether a particular use is indeed fair use. Consideration of all four factors is needed to help determine whether or not copyright permission is required.  Fair use is not a straightforward concept; therefore, any fair use analysis must be conducted on a case-by-case basis considering all four factors and the circumstances of the situation at hand.  Before applying these factors to your situation, identify if the use is for criticism, comment, news reporting, education, scholarship or research. If the answer is no, obtain copyright permission to use the content.” (via The Campus Guide to Copyright Clearance)

What if neither the copyright holder nor the user can afford a lawyer?  Setting best practices might help. “poets communicated a general sense that their ability to do their work with confidence was often impeded by institutional regulations based on very straitened interpretations of copyright. They lacked clear guidance as to what material might be available in the public domain. Moreover, they were constrained by their own lack of certainty about what uses are and are not fair within the practices of poetry. While they certainly wish to appropriately control their own work, and to make money where money is to be made, poets also expressed a strong wish to affirm the importance of their ability to make reasonable unlicensed uses of copyrighted material and their support for such uses by others of their own works.” (via the Center for Social Media’s Code to Best Practices for Fair Use in Poetry)

 

About Jean Cook

Jean Cook is a musician, producer and Director of Programs for Future of Music Coalition, a national nonprofit that works to improve the lives of musicians through research, education and advocacy on policy issues that directly impact the ability of musicians to make a living and reach audiences. She is a founder and director of Anti-Social Music, a New York-based new music collective, and currently records and tours with Ida/Elizabeth Mitchell, Jon Langford, and Beauty Pill. For FMC, she currently project directs initiatives to fix jazz and classical music metadata, analyze what is actually played on jazz radio (and how to improve data collection), and understand how copyright impacts indigenous artists in places like Ethiopia, Tajikistan and Australia.

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