15. Statutory Limits on Copyright Enforcement, including Fair Use
Learning Objectives: Unit 15
Upon completion of this unit, you should be able to:
- Recall major statutory limits on copyright enforcement.
- Explain the concept of fair use with reference to statutory and case authority.
- Recall the definitions of parody and satire.
- Analyze fair use in the context of a factual scenario.
Although it is not the only statutory limit on copyright enforcement, fair use is widely viewed as the primary safety valve on copyright infringement. In part this is due to the flexibility of the fair use analysis itself.
In this class we will learn about statutory limits on copyright enforcement and discuss the concept of fair use in some depth. You should begin by reading 17 U.S.C. § 107 and any relevant statutory definitions. Next, read Campbell v. Acuff Rose. This case is a tale of two songs: the original version of Oh, Pretty Woman by Roy Orbison and the rap of Pretty Woman by 2LiveCrew. The lyrics are at the end of the majority opinion.
17 U.S.C. §107. Limitations on exclusive rights: Fair use (1992)
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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
