Renee Hobbs considers how publishers benefit from fair use.

1. Copyright Clarity: How
Fair Use Supports
Publishers
Renee Hobbs
Harrington School of Communication and Media
University of Rhode Island USA

2. Creative communities
clarify the scope of their
rights and responsibilities
under copyright
• Code of Best Practices in Fair Use for Software Preservation
(2018)
• Code of Best Practices in Fair Use for the Visual Arts (2015)
• Code of Best Practices in Fair Use for Academic and
Research Libraries (2014)
• Set of Principles for Fair Use in Journalism (2013)
• Code of Best Practices in Fair Use for Online Video (2008)
• Code of Best Practices for Fair Use in Poetry (2011)
• Code of Best Practices in Fair Use for Media Literacy
Education (2006)
• Documentary Filmmakers Statement of Best Practices in
Fair Use (2005)

3. 1. If it’s on the Internet, I
can copy and use it.
2. As long as I cite my
source, I can use it.
3. If I’m not making money
off it, I can use it.
4. Fair use is too
complicated for me – it’s
best left to lawyers &
administrators.
5. Fair use only applies to
critiques and parodies,
not student or teacher
work.
SOME
MYTHS
&
MISINFORMATION

4. The documents created by these negotiated
agreements give them “the appearance of positive
law. These qualities are merely illusory, and
consequently the guidelines have had a seriously
detrimental effect. They interfere with an actual
understanding of the law and erode confidence in the
law as created by Congress and the courts”
--Kenneth Crews, 2001
Educational Use Guidelines
are NOT the Law!

5. EVERYTHING
IS COPYRIGHTED
Any work of
expression in fixed
or tangible form

6. Creative Control
The Copyright Act of 1976 grants five
rights to a copyright owner:
1. the right to reproduce the
copyrighted work;
2. the right to prepare derivative
works based upon the work;
3. the right to distribute copies of the
work to the public;
4. the right to perform the copyrighted
work publicly; and
5. the right to display the copyrighted
work publicly.

7. EVERYTHING
IS COPYRIGHTED
..but there are
exceptions

9. The Doctrine of Fair Use
For purposes such as
criticism, comment,
news reporting, teaching (including multiple
copies for classroom use),
scholarship or research
SECTION 107
Copyright Act of 1976

10. The Doctrine of Fair Use
“It not only allows but encourages socially
beneficial uses of copyrighted works such as
teaching, learning, and scholarship. Without fair use,
those beneficial uses— quoting from copyrighted
works, providing multiple copies to students in class,
creating new knowledge based on previously
published knowledge—would be infringements. Fair
use is the means for assuring a robust and
vigorous exchange of copyrighted information.”
--Carrie Russell, American Library Association

11. Using Copyrighted Material:
Four Choices for the Creative Individual
Ask Permission
PAY A LICENSE FEE
CLAIM AN EXEMPTION
Use it Without
Permission or Payment
DON’T USE IT
Use PUBLIC DOMAIN,
ROYALTY-FREE or
CREATIVE COMMONS
LICENSED CONTENT
1 3
2 4

12. Four Factors of Fair Use
107

13. Bill Graham Archives vs. Dorling Kindersley,
Ltd. (2006)
DK directly contacted BGA to negotiate a license
agreement, but the parties disagreed as to an
appropriate license fee.

14. Bill Graham Archives vs. Dorling Kindersley,
Ltd. (2006)
DK reproduced seven images originally depicted on Grateful Dead event posters and
tickets, displayed in significantly reduced form and accompanied by captions
describing the concerts they represent.

15. Court Ruled DK’s Unlicensed Use of Images
was a Transformative Use
The purpose of the original:
To generate publicity for a
concert.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

16. Court Ruled DK’s Unlicensed Use of Images
was a Transformative Use
The purpose of the original:
To generate publicity for a
concert.
The purpose of the
new work: To
document and illustrate
the concert events in
historical context.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

17. https://osc.hul.harvard.edu/assets/files/GratefulDead.pdf

18. TRANSFORMATIVENESS
The court considered “whether
the new work merely supersedes
the objects of the original
creation, or whether and to what
extent it is 'transformative,'
altering the original with new
expression, meaning, or message.”
The more transformative the new
work, the less will be the
significance of other factors, like
commercialism, that may weigh
against a finding of fair use."
1994 (Campbell v. Acuff-Rose
Music, 510 U.S. 569)

19. User Rights, Section 107

20. Educational Publishers Rely on Fair Use
to Create Curriculum Resources

21. Learners Rely on Fair Use for
Media Projects

22. Exercising Your
Fair Use
Reasoning
Involves
Critical Thinking

23. 1. Did your use of the
work re-purpose or
transform the
copyrighted material?
2. Does your use merely
re-transmit the original
work? Could your work
serve as a substitute or
replacement for the
original?
3. Did you use only the
amount needed to
accomplish your
purpose?
Critical Questions for
Making a Fair Use
Determination

24. Copying to merely exploit the popularity of
another’s work
Copying that become a substitute or
replacement for the original

25. Warren Publishing Co. v. Spurlock Vanguard
Productions, 2009
The book publisher had obtained licenses from the artist directly but the
magazine pubisher claimed copyright under work-made-for-hire principles.

26. An Example of Transformative Use
The purpose of the original:
to entertain audiences
The purpose of the
new work: to provide a
biography and
retrospective analysis
of the artist’s work

27. SOFA ENTERTAINMENT V. DODGER
PRODUCTIONS (2013)
Dodger Productions used 7 seconds of the Ed Sullivan Show in their
Broadway musical The Jersey Boys without paying a license fee

28. An Example of Transformative Use
The purpose of the original:
to entertain audiences
The purpose of the
new work: to mark an
important historical
moment in the history
of the musical group.

29. An Example of Transformative Use
“Moreover, because
the use of the clip is
transformative, the
fact that Jersey Boys
is a commercial
production is of little
significance”
SOFA ENTERTAINMENT V.
DODGER PRODUCTIONS
(2013)

30. SOFA was also ordered to pay $150,000 to
Dodger to reimburse their legal fees
“Lawsuits of this nature . . . have a chilling
effect on creativity insofar as they
discourage the fair use of existing works in
the creation of new ones.
When a fee award encourages a defendant
to litigate a meritorious fair use claim against
an unreasonable claim of infringement, the
policies of the Copyright Act are served.
Therefore, we conclude that the district
court’s award of attorney fees to Dodger
was justified.

31. Dr. Seuss Enterprises. v. Penguin Books 1997
"One Knife? / Two Knife? / Red Knife
/ Dead Wife."

32. “These stanzas and the illustrations simply retell the
Simpson tale. Although The Cat NOT in the Hat!
does broadly mimic Dr. Seuss' characteristic style,
the stanzas have "no critical bearing on the
substance or style of" The Cat in the Hat.
They merely use the Cat's stove-pipe hat, the
narrator, and the title "to get attention" or maybe
even "to avoid the drudgery in working up something
fresh."
Not Transformative

33. Because there is no effort to create a transformative
work with "new expression, meaning, or message,"
the infringing work's commercial use further cuts
against the fair use defense
Not Transformative

34. In 1994, David W. Stowe, a professor at
Michigan State University, wrote Swing
Changes: Big-Band Jazz in New Deal America,
a book about the cultural milieu of big-band
jazz, published by Harvard University Press.
He wanted to reproduce cartoons from Down
Beat magazine to illustrate the racism and
sexism of the era. But the magazine refused
because "the drawings made the magazine
‘look bad.’"
The publisher feared a lawsuit, and so did not
claim fair use to the images. Their decision
gave the magazine a chance to stifle criticism.

35. Exercising Your
Fair Use
Reasoning
Involves
Critical Thinking

36. 1. Did your use of the
work re-purpose or
transform the
copyrighted material?
2. Does your use merely
re-transmit the original
work? Could your work
serve as a substitute or
replacement for the
original?
3. Did you use only the
amount needed to
accomplish your
purpose?
Critical Questions for
Making a Fair Use
Determination

37. IMPLICATIONS
1. Authors should be responsible for permissions and fair
use judgments
2. Authors need to learn to distinguish between when they
need permission and when they can claim fair use
3. Publishers can educate authors who mistakenly think
that citation automatically deems material fair use
4. Publishers should treat marketing images very differently
from reproductions inside the book
5. Publishers who require permissions in every case risk
stifling creative expression and the creation of new
knowlege

38. TRANSFORMATIVENESS
Implications for Publishers
Implications for Creativity
Implications for Culture

39. Renee Hobbs
Media Education Lab
University of Rhode Island
EMAIL: hobbs@uri.edu
Web: www.mediaeducationlab.com