This article is a continuation of an article called "How Much of Someone Else's Work May I Use Without Asking Permission", which discussed the statutory codification, judicial interpretation, and general parameters of the "fair use doctrine".

This column discusses specific fair use judicial decisions in an attempt to show how some courts have interpreted the use, without permission, of another's copyrighted work, and hopefully will help you evaluate whether a particular use of a copyrighted work will be protected by the fair use doctrine.

Any attempt to understand the basis for specific judicial decisions must take into consideration the fact that the fair use doctrine is not intended to be a rigid, fixed body of law, but is instead a flexible body of law that varies with the specific circumstances of a particular case. It is for this reason that fair use judicial decisions are difficult to predict and sometimes very difficult to reconcile with previous decisions.

How Much Can One Use of Literary Works?

Many authors and publishers have the perception that the law provides specific guidelines relating to the number of words one can use of a copied work. Although rumors persist as to word-count guidelines, it is safe to conclude that the law does not provide a specific word-count that will be designated as fair use of another's work. Some examples of the scope of such word-count variances are the following: (i) 300 words quoted in a magazine article from approximately 30,000 words in President Gerald Ford's manuscript of his memoirs was not fair use, (ii) 200 words quoted from the unpublished letters of J.D. Salinger in an unauthorized biography was deemed not to be fair use, (iii) the photocopying of entire scientific and medical journal articles was found in one instance not to be fair use (American Geophysical Union v. Texaco, Inc., 1994), and in another instance to be fair use (Williams & Wilkins Co. v. United States, 1975), and (iv) placing unpublished Church of Scientology materials in their entirety on an Internet bulletin board was found to be fair use.

One may ask, "Why are there no absolute rules?" Probably the simplest, and yet most unsatisfactory answer is that the specific circumstances of each case differ. The court when evaluating fair use analyzes four separate factors to determine whether the fair use defense applies in the specific case. These factors are the following:

Because the court in analyzing fair use considers all of the above four factors -- no single factor is and of itself sufficient to prove fair use -- a brief review of two cases should be helpful in understanding how the court reached its decision on the fair use issue.

President Ford's Memoirs

President Ford contracted with Harper & Row to publish his memoirs. Harper & Row then contracted with Time magazine the exclusive right to publish, one week before the book would be shipped, a 7500 word excerpt from the book. The Nation magazine obtained a copy of the Ford manuscript several weeks before Time's publication of the article and published its own 2,250 word article that included quotes, phrases and facts from the manuscript. Following the publication of the Nation article, Time canceled publication of its article and did not pay remaining monies that were due Harper & Row. Harper & Row then proceeded to sued the Nation for copyright infringement.

This case eventually wound up in the Supreme Court where the Court found in favor of Harper & Row and against the Nation's argument of fair use. The Court's analysis of the four factors was as follows:

In summary, the Supreme Court concluded that all four factors weighed against finding a fair use defense for the Nation's publication of the article based on President Ford's memoirs.

Church of Scientology

The Religious Technology Center ("RTC") is a formal entity of the Church of Scientology founded by Ron L. Hubbard. RTC claims to hold an exclusive license to certain unpublished works of Hubbard which have restricted access to only certain members of the Church. F.A.C.T. Net is a nonprofit educational and charitable company run by former Church members. F.A.C.T. Net maintains a library and archive information on the Church dealing with the Church's controversial status as a religious tax exempt organization; much of this information is available on F.A.C.T. Net's bulletin board on the Internet. RTC sued F.A.C.T. Net for copyright infringement for placing unauthorized copies of unpublished Church materials on the Internet.

This case was brought in the federal District Court of Colorado where the court refused to grant a preliminary injunction that would have removed the F.A.C.T. Net materials from the Internet. In refusing to grant the injunction the court concluded that F.A.C.T. Net's use of the Church materials was fair use. The court's analysis of the four factors was as follows:

In summary, the District Court of Colorado concluded that F.A.C.T. Net had made fair use of the Church materials; the use was non-commercial and the evidence presented by RTC suggested no financial harm, other than that possibly resulting from criticism, to the copyright owner.

Guidelines

One must remember there are no absolute rules when the issue involves how much one is permitted to take of another's copyrighted work and still be protected by the fair use doctrine.

There is no certainty, when copying another copyrighted work without permission, that a court will interpret the specific circumstances as fair use. Ultimately, whether a court will determine a specific use to be fair use will be dependent upon the circumstances and the court's analysis of the four fair use factors enumerated in Section 107 of the Copyright Act.

Sign up for our FREE PubLaw Update Newsletter and receive new articles sent to your email address as they are published.

Lloyd L. Rich is an attorney practicing publishing and intellectual property law. He can be reached at 1163 Vine Street, Denver, CO 80206. Phone: (303) 388-0291; FAX: (303) 388-0477; E-Mail: rich@publishingattorney.com; Web Site: http://www.publishingattorney.com.