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Conversely, attribution prevents accusations of plagiarism, but it does not prevent infringement of copyright. For example, reprinting a copyrighted book without permission, while citing the original author, would be copyright infringement but not plagiarism.
Supreme Court described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc. Thus, fair use need not even be raised as a defense unless the plaintiff first shows or the defendant concedes a " prima facie " case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work borrowed only a small amount , for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense.
In addition, fair use is only one of many limitations, exceptions, and defenses to copyright infringement. Thus, a prima facie case can be defeated without relying on fair use. For instance, the Audio Home Recording Act establishes that it is legal, using certain technologies, to make copies of audio recordings for non-commercial personal use.
Strategic lawsuit against public participation SLAPP cases such as these—alleging copyright infringement, patent infringement, defamation, or libel—often come into conflict with the defendant's right to freedom of speech , and has prompted some jurisdictions to pass anti-SLAPP legislation which raises the plaintiff's burdens and risk. Although fair use ostensibly permits certain uses without liability, many content creators and publishers try to avoid a potential court battle by seeking a legally unnecessary license from copyright owners for any use of non-public domain material, even in situations where a fair use defense would likely succeed.
The simple reason is that the license terms negotiated with the copyright owner may be much less expensive than defending against a copyright suit, or having the mere possibility of a lawsuit threaten the publication of a work in which a publisher has invested significant resources.
Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use a non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or licence agreements may take precedence over fair use rights.
For instance, quoting from a copyrighted work in order to criticize or comment upon it or teach students about it, is considered a fair use. Certain well-established uses cause few problems.
A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors except possibly on amount and substantiality , but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though they may sell their review commercially; but a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.
Fair use is decided on a case by case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different time can make a difference due to changing social, technological, or other surrounding circumstances.
Google, Inc. Google used the APIs' definition and their structure, sequence and organization SSO in creating the Android to support the mobile device market. Oracle had sued Google in over both patent and copyright violations, but after two cycles, the case matter was narrowed down to whether Google's use of the definition and SSO of Oracle's Java APIs determined to be copyrightable was within fair use. The Federal Circuit Court of Appeals has ruled against Google, stating that while Google could defend its use in the nature of the copyrighted work, its use was not transformative, and more significantly, it commercially harmed Oracle as they were also seeking entry to the mobile market.
The case, should this ruling hold, could have a significant impact on developing products for interoperability using APIs, such as with many open source projects. With the help of an intellectual property lawyer, the creators of Loose Change successfully argued that a majority of the footage used was for historical purposes and was significantly transformed in the context of the film.
They agreed to remove a few shots that were used as B-roll and served no purpose to the greater discussion. The case was settled and a potential multimillion-dollar lawsuit was avoided. The director had originally planned to license these clips from their studio owners but discovered that studio licensing agreements would have prohibited him from using this material to criticize the entertainment industry.
This prompted him to invoke the fair use doctrine, which permits limited use of copyrighted material to provide analysis and criticism of published works. File sharing[ edit ] In , fair use appeared as a defense in lawsuits against filesharing.
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Charles Nesson argued that file-sharing qualifies as fair use in his defense of alleged filesharer Joel Tenenbaum. Arriba Soft Corp. In the lower District Court case on a motion for summary judgment , Arriba Soft's use of thumbnail pictures and inline linking from Kelly's website in Arriba Soft's image search engine was found not to be fair use.
That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation , who argued that it was fair use. In reaching its decision, the court utilized the statutory four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution as the original artwork was.
Second, the photographs had already been published, diminishing the significance of their nature as creative works. Third, although normally making a "full" replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails.
To the contrary, the thumbnail searches could increase the exposure of the originals. In looking at all these factors as a whole, the court found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, The remaining issues were resolved with a default judgment after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement.
The case involved Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania , who made a home video of her thirteen-month-old son dancing to Prince's song Let's Go Crazy and posted the video on YouTube.
Four months later, Universal Music , the owner of the copyright to the song, ordered YouTube to remove the video under the Digital Millennium Copyright Act. Lenz notified YouTube immediately that her video was within the scope of fair use, and she demanded that it be restored.
YouTube complied after six weeks, rather than the two weeks required by the Digital Millennium Copyright Act. Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair use of the song. We conclude that because 17 U. Hoehn that the posting of an entire editorial article from the Las Vegas Review Journal in a comment as part of an online discussion was unarguably fair use.
Judge Pro noted that "Noncommercial, nonprofit use is presumptively fair. Hoehn posted the Work as part of an online discussion.
This purpose is consistent with comment, for which 17 U.
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