The following article appears in the journal JOM,
48 (2) (1996), p. 74.

JOM is a publication of The Minerals, Metals & Materials Society

Not All Copyright Infringement Results in Liability

David V. Radack

Copyright infringement may occur when a copyrighted work is copied by another without the copyright owner's permission. Copying does not need to be a direct word-for-word copy of the work. It can also occur when the author of the allegedly infringing work had access to the copyrighted original, and the allegedly infringing work is substantially similar to the original. Once copyright infringement is established, the owner of the copyrighted work can obtain an injunction against the infringer to prevent further copying and also obtain damages to compensate him or her for the copying.

United States copyright law has long recognized that some copyright infringement acts are defensible as fair use. That is, under certain circumstances, copyright infringement is permitted without liability. The scope and limits of the fair-use doctrine have been codified in section 107 of the U.S. Copyright Act. This section does not directly define fair use; instead, it lists four factors to be considered in making the determination of whether copying the work is fair. These four factors are:

*The purpose and character of the use.
*The nature of the copyrighted work.
*The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
*The effect of the use upon the potential market or value of the copyrighted work.

It is important to note that these are factors to be considered in making the fair-use determination and are not a listing of the elements that must be satisfied. Sometimes, only one factor may lead to a conclusion of fair use because the factor is so important. Other times, three factors may lead to a finding of fair use; however, the one factor mitigating against fair use may outweigh the other three factors combined. Because of this flexibility, it is not possible to state hard-and-fast rules regarding fair use in general terms; it is imperative that any analysis of fair use consider all of the evidence in order to determine whether certain acts of copyright infringement can be excused as fair use.

The language of section 107 also helps to define other purposes that may lead to fair use. This includes purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Once again, having one of these purposes does not automatically lead to a finding of fair use; however, it does provide a better basis for finding fair use than if the purpose was commercially or profit motivated.

The first factor considered in fair use is the purpose and character of the use. Section 107 states that under this factor, it must be determined "whether such use is of a commercial nature or is for nonprofit educational purposes." Thus, one very important element in the fair-use analysis is to determine whether the copying is commercially motivated. If the copying is for a commercial use (as opposed to an educational, personal, or research purpose), fair use is less likely to be found. Clearly, someone pirating a video tape and selling the copied work for a profit is in a much different position than a public high school teacher who copies an article from a magazine for distribution to his or her students. Indeed, many cases have held that commercial application of the copied material (i.e., sale for profit) is a major roadblock to claiming fair use. Thus, if there is a profit or commercial motive in copying the work, fair use is probably not available as a defense to copyright infringement.

The second factor is the nature of the copyrighted work. In certain circumstances, more protection is given to works that are more creative or original. For example, fair use is less likely to be found in copying a painting or work of art than a catalog, index, or other compilation, even though both categories are protected under the copyright law. Copying informative works such as news stories and factual accounts rather than entertainment or creative works is more likely to be found to be fair use. Once again, this second factor is not determinative, but is placed on the scales to weigh the argument for fair use.

The amount and substantiality of the portion used in relation to the copyrighted work as a whole is the third factor. If someone copied two paragraphs from a 1,000 page book, fair use would more likely be found than if someone copied 75 words of a 100 word poem. This factor, however, cannot be limited to a strictly numerical consideration. For example, if the two paragraphs of the 1,000 page book were the core of the book, the fact that only a small portion (in raw percentage) was copied would be mitigated by the substantiality of the passage copied.

The fourth factor is the effect of the use upon the potential market for or value of the copyrighted work. Courts have stated that this factor strikes a balance between the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied. It is generally believed that this is the most important of the fair-use factors. Rules are particularly difficult to formulate for this factor. Hence, it is sometimes very difficult to predict how a court will rule when faced with evidence indicating the potential market detriment the owner faces when his or her work is copied.

Cleary, not all copyright infringement results in liability—the fair-use defense may be available to excuse liability for copyright infringement. However, these determinations are heavily fact-based and must be considered on a case-by-case basis.

David V. Radack is a partner with Eckert Seamans Cherin and Mellott in Pittsburgh, PA 15219; (412) 566-6000; fax (412) 566-6099; e-mail ARNIE@TELERAMA.LM.COM

Copyright © 1995 by The Minerals, Metals & Materials Society.

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