May 1, 1996
Issue 305, page 41
Expressing yourself on the Web sometimes involves pop culture. An excerpt from The Lord of the Rings, an audio clip of The Mod Squad theme, a portion of dialogue from The Simpsons, or a snapshot of your Snoopy-inspired sculpture might help define the "real you."
Can you, however, legally digitize your treasures and display them on a virtual knick-knack shelf? The Copyright Statute is clear. You can be branded a copyright infringer if you publish, adapt, copy, distribute, display, or record another's copyrighted work. You're also liable if you prepare a derivative work from the original piece.
In the examples above, if you digitize and display your worshiped keepsakes without permission, you have infringed upon each owner's copyright by multiple methods: You not only have illegally copied these artistic creations, but you also have illicitly displayed, distributed, and published them on the Web.
Luckily, conscientious consumers can call upon the doctrine of fair use as a complete defense to a charge of copyright infringement. If your purpose can be classified as criticism, news reporting, research, or teaching, and if you pass the four-part fair-use test, you can copy those copyrighted works and display them on your Web curio cabinet.
Because life in the law is rarely black and white, courts have analyzed each dispute of fair use on a case-by-case basis for more than 100 years. They have, however, evolved a set of criteria, which aren't completely definitive or determinative, but provide some general guidance. These considerations are: the purpose and character of use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of use upon the potential market or on the value of the copyrighted work. Courts will consider all criteria to see which way the scale tips.
Let's evaluate these four factors as they apply to the artifacts I mentioned. If your Web page is purely personal, you likely can satisfy the first factor in the fair-use inquiry. But most Web pages aren't so categorically clean. They often contain commercial components designed to elicit business, such as rŽsumŽs, descriptions of your wares and whereabouts, and places to purchase your products or services.
Perhaps the products you sell online are targeted to sci-fi fantasy readers and advertisers, so you took a bit from Tolkien. Or maybe your jingle-writing brilliance is best embodied by that Mod Squad theme. Courts will smell a commercial nature in such uses. If you want to tip toward noncommercial, add a new meaning or message. Discuss why Tolkien was an elf-loving misanthrope. Debate Matt Groening's allusions in The Simpsons. Provide commentary or criticism and the first factor tilts toward fair use.
The second statutory factor, the nature of the copyrighted work, is the least important criterion. Artistic creations are considered closer to the core of copyright protection, and for these works, courts will apply a more stringent standard of fair use. Short fiction and novels, movies, plays, and unpublished memoirs are all considered artistic expressions. For informational works, the courts will more readily find fair use. Almanacs, dictionaries, encyclopedias, guide books, news broadcasts, and legal, medical, and scientific reference documents are all considered factual material. The artifacts I proposed earlier are popular icons that the courts will protect strongly, so the second factor tilts toward unfair use. (As a helpful hint, remember it's always better to borrow from Noah Webster than Walt Disney.)
Contrary to urban legend, there is no formula for the third factor-the amount of a copyrighted work you may fairly copy. The less the better, but even itty-bitty borrowings can be unfair use if you steal the heart of the original creation. In 1991, the rapper Biz Markie sampled three words and some melody from Gilbert O'Sullivan's song "Alone Again (Naturally)" for one song on his LP. The judge forbade further production of the entire album.
A parody is perhaps the safest stealing because courts permit them to claim much of their victim's creation. The Supreme Court let 2 Live Crew scathingly sample much of the melody and lyrics of Roy Orbison's classic "Oh, Pretty Woman" for a rap parody. For your Web site, using a snippet from Tolkien's total text tips the third factor toward fair use. The album cover, TV theme, and Snoopy sculpture are total takings, however, and they tilt toward unfair use.
The fourth factor is the most important element of fair use. If you injure the market for the copyrighted work, the entire scale starts to slip toward unfair use. The Supreme Court, for example, ruled printing parts of an unpublished memoir was not fair use because prepublication would impair sales of the completed book.
The Court permitted the 2 Live Crew "Pretty Woman" parody, in part, because the pop and rap music markets don't intersect. But a court did not permit the artist Jeff Koons to make a sculpture from a famous photograph of a park bench of puppies, since the sculpture undermined new uses for the picture.
Your Web page probably won't nick the market for your chosen bric-a-brac, so the fourth factor leans toward fair use. If, however, your Web site becomes so chic that the digerati would rather download your Simpsons segment than tune in to Fox, it's time to rethink your collection.
Tallying up the final four: If you supply critical commentary, the Simpsons and Tolkien tidbits may be fair use. But the album cover, theme song, and Snoopy sculpture may fall into unfair use.
If you desperately want to digitize these works, you may be able to license such use from the copyright owners. Organizations including the Copyright Clearance Center (http://www.copyright.com/), the Copyright Holders DataBase (http://www.pickphoto.com/chd.html), and the Motion Picture Licensing Corporation (http://www.mplc.com/) will assist you in licensing text, photos, and movies.
Still, concerned copyright owners are unlikely to locate your use of their creations. If they do ferret out your Web page, and you lose your fair-use defense play, a court might charge you no more than $200 if you're an "innocent" infringer. If both you and the judge are not so naive, however, you can be forced to fork over $100,000.
It may not make the nightly news, but you also can be imprisoned for copyright infringement for as long as a year. If you infringe upon a sound recording, your crime will be classified as a felony in at least 30 states. The judge who found Biz Markie's album to be copyright infringement also referred the matter to the district attorney for criminal prosecution. That LP is not only a collectible, it's criminal.
Copyright infringement is scary stuff. Before you start wielding your scanner willy-nilly, analyze each usage under the four-part fair-use test. If the answer is fair, feel free to digitize and display your cherished collectibles on your Web page. If the result tends toward unfair, however, calculate the degree of liability you're willing to risk. Sometimes, keeping that pop icon on your wall at home is the next best thing to putting it on your Web page. @
Marie D'Amico is an intellectual property attorney and writer on legal and technology-related issues. She can be reached at mad@madcapps.com.