Because of Fair Use

So we talk a lot about fair use on this blog, but some of you might be wondering what the actual law says about it!

Fair use is discussed in Title 17 of U.S. Code, section 107 titled “Limitations of exclusive rights: Fair use.” The text of this section of the law is so brief that all of it could be posted on a single PowerPoint slide. Literally, here it all is: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. And yet, for being so brief, fair use is incredibly complicated.

To explain section 107 of the law, we are going to look at a recent example of somebody claiming fair use. On February 5, 2016, the publisher Samuel French tried to shut down the show That’swhatshesaid. The dialogue of this play is spoken by one person, Erin Pike, and consists entirely of dialogue from other plays. Specifically, dialogue by the female characters in the American Theatre Top 10 Plays of 2014-2015. Samuel French sent the show a cease and desist letter, claiming that the show’s use of copyrighted material from the show Bad Jews is infringement. If the show went on using the dialogue from Bad Jews, everyone involved would be liable. Let’s look at the Four Factors of Fair Use to analyze this show’s use of the copyrighted material:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

That’swhatshesaid is definitely not for nonprofit educational purposes. However, the purpose of the use is to deconstruct patriarchal systems in language, and the use here is transformative.

(2) the nature of the copyrighted work;

Bad Jews, the show in question, is a highly creative fictional work (in this instance, a play), and is therefore not as favorable to fair use as a nonfiction work.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

That’swhatshesaid only uses certain dialogue from Bad Jews to make its point; the rest is from other shows. Much like music sampling, this play “samples” dialogue from other shows to create a wholly new, transformative work.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Is seeing That’swhatshesaid a replacement for seeing Bad Jews, or any of the other plays used in the dialogue? Because of the commentary and deconstructive nature, I argue that seeing That’swhatshesaid might encourage theater-goers to see the plays in question for themselves!

As you can see, the factors of fair use are a good starter for analyzing a work, but whether or not the use is fair is more complicated than what is given in the law. But fair use, ultimately, is there to support people making works of their own and building on the works of others. And that’s a good thing.

This post was created by Jessica Colbert.

Bibliography

The United States District Court, S.D. New York ruled in favor of playwright David Adjmi, calling his play 3C a "highly transformative parody of the television series that, although it appropriates a substantial amount of Three's Company, is a drastic departure from the original that poses little risk to the market for the original."

As a musician, I couldn’t resist the temptation of kicking things off with a music post. Fellow Pittsburgher Greg Gillis has been pushing the fair use music envelope since his 2006 release Night Ripper. Like other new media artists, he goes beyond using just electronically created sounds, opting instead to use previously recorded music as the “notes” in his composition.

What is art? While humans have struggled to define art as a species for more than a millennia, we can all agree on one thing: art cannot exist in a cultural vacuum.

Artists rely on the ability to use the cultural expressions of others to communicate, advocate, and critique. Technological advances have provided artists with new ways to communicate their ideas, but simultaneous expansions of intellectual property have left some artists self-censoring and limiting their work in fear of violating copyright laws. 

I started this site to highlight how fair use has become a critical tool for artists in all media in the 20th century. This site is a place to celebrate the innovative work of artists who employ fair use to create new meaning, commentary, and critique when using the work of others in their art. If you have a fair use story about music, theatre, visual art, poetry or any other kind of art you can imagine, please share your story!