First Amendment Handbook [Back to contents page] [RCFP Home Page]

Copyright: How to avoid copyright infringement

Copyright infringement can be embarrassing, costly and criminal. Recently, a federal appellate court ordered three television stations to pay $8.8 million for broadcasting hundreds of episodes from popular television series without permission. Under the Digital Millennium Copyright Act, circumventing copyright protection systems such as signal scramblers or encryption technology is now a criminal offense.

The best way to avoid violating a copyright is simply to obtain the author's permission before using that expression of ideas or facts. If you cannot get the author's permission, restate the ideas in your own words.

Avoid using large segments of someone else's expression verbatim — this could be a blatant copyright infringement. The radio news announcer who broadcasts stories from the local newspaper word for word is asking to be sued.

Not every unauthorized use of a copyrighted work is a copyright infringement. The statute considers some uses to be "fair uses," such as news reporting, commentary, criticism, research, teaching and scholarship. The Supreme Court found in 1994 that the commercial parody of the classic rock and roll song "Oh, Pretty Woman" by the rap group 2 Live Crew may be protected as a fair use under the Copyright Law.¹¹

However, no use is presumptively "fair." Courts examine four factors in deciding whether a specific use is a "fair use":

• The purpose and character of the use, including whether the use is commercial or of a non-profit, educational nature.
• The nature of the copyrighted work. Uses of expressive, as opposed to factual, works are less likely to be considered fair uses, as are uses of unpublished works.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Here the court will consider the qualitative as well as the quantitative use. If the user excerpts 200 words from a 10,000-word book, but those 200 words constitute the heart of the book, this may not qualify as fair use.
• The effect of the use upon the potential market for or value of the copyrighted work. If the challenged use adversely affects the potential market for the copyrighted work, the use is not fair.

The Supreme Court in 1988 let stand a ruling that use of unpublished diaries and letters under the premise of research or news reporting may impair the future value of those writings. Such works are protected by a prepublication copyright. Further, there is a presumption that use of unpublished works is not fair use, the lower court concluded.¹²

In November 1991, however, the U.S. Court of Appeals in New York (2nd Cir.) ruled that whether a work is unpublished is only one consideration in determining whether quoting from it is fair use. The widow of deceased author Richard Wright maintained that excerpts of her husband's unpublished journals and letters were plagiarized in a biography published by Warner Books. Even though the excerpts were unpublished, the court ruled in favor of the publishing company after considering the four fair use factors.¹³

Posting an entire document online may not constitute fair use if done for purposes other than comment, criticism or news reporting. In a 1996 decision, a federal district court held that a former church member violated the church's copyright when he posted documents — which contained church doctrine, normally available only to paying members of the church — wholesale on the Internet with virtually no additional editorial comment. However, the church's suit against a newspaper that published an article including excerpts of posted materials was dismissed because the newspaper's reporting was in the public interest and it made selective and limited use of the material.¹⁴

Notes

11. Campbell v. Acuff-Rose Music Inc., 114 U.S. 1164 (1994).

12. Salinger v. Random House, 484 U.S. 890 (1988).

13. Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991).

14. Religious Technology Center v. Lerma, 24 Media L. Rep. 2473 (1996).

Next section: Copyright: Legal action to protect a copyright