If you are using books, newspapers or magazines in your creations, first determine the age of the items, if possible. Anything published before 1923 is in the public domain and is free to use. Anything else would generally be covered by copyright law.
So, let’s say you rip out a book page and decoupage it onto a wooden box that you then offer for sale. Could the author of the book then claim you are infringing on their work? Well, they could but you would have a strong fair use argument in that case.
Fair Use
Fair use is a doctrine included in the Copyright Act which allows copyrighted material to be used without the owner’s permission as long as certain criteria are met. The Copyright Act states as follows:
“...[T]he fair use of a copyrighted work... 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.” [1]
O.k., so, what does all of that legalese mean? Courts use the four-part test laid out above to analyze fair use claims. They go through each prong and decide whether the use weighs in favor of fair use or against fair use and then tally it up before rendering a decision. So, let’s take a look at how this analysis would go if we were making book page art like the photo depicted above.
Purpose and Character of the Use
The first part of the fair use test largely analyzes whether a work is commercial in nature and/or whether it is “transformative.” As I have perused the Internets over the years, I have often seen people claim that once you offer something for sale, you automatically violate copyright and there are no defenses available. This is untrue for a number of reasons but, as it pertains to fair use, while commercial use does “tend to weigh against” a finding of fair use, courts have held that the fact that a use is commercial should not be “unduly emphasized.” [2] So, commercial use is a single factor that is not controlling. In the book page example, let's assume it is being listed for sale. Although this weighs against a finding of fair use, it does not, on its own, disqualify it from being a fair use.
We look next to whether the use of the pages is “transformative” in nature. “Transformative” can take many forms when looking at fair use but, the Supreme Court of the United States has explained that when determining whether something is “transformative,” you must focus on whether the new work “merely supersedes” the original creation, or whether “it alter[s] the original with new expression, meaning, or message.” [3] “Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.” [4]
There is a good argument that the book pages would be transformative in nature. They do not take the place of the book in the market and are certainly being used for different and new purpose. Adding artwork to the book page can add new expression and meaning as well. So, on balance, it is likely that this factor weighs in favor of fair use.
The Nature of the Copyrighted Work
This prong of the fair use test has to do with whether the copyrighted work is factual or creative in nature and whether it is published or unpublished. Using works that are purely factual in nature, like a news article or an almanac, is more likely to qualify for fair use than using creative works because creative works are “precisely the sort of expression that the copyright law aims to protect.” [5] The more creative a work is, the more protection it should be given from copying. Also, using a published work favors fair use more than using an unpublished work. [6]
In our hypothetical, we will assume the book is creative in nature which weighs against fair use but it is also published which weighs in favor of fair use so this prong may be a wash on balance.
The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole
This factor looks at how much of the copyrighted work was used in relation to the purpose of the copying since “the extent of permissible copying varies with the purpose and character of the use.” [7] So, there are no hard rules about how much of a copyrighted item may be used to qualify for fair use, but the courts will look at whether the copying used more of the protected work than necessary and whether the copying was excessive. It really is a case-by-case analysis. In our case, it is one page of what is, presumably, a multiple-page book. The more pages the book has, the stronger the argument but it is a strong argument in any case. This factor weighs in favor of fair use.
The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work
This final factor has been called “...undoubtedly the single most important element of fair use.” [8] This prong analyzes whether the second work usurps the market for the original work or derivative works using the original and, if so, it weighs against a finding of fair use. This makes sense - allowing someone to copy an original and creative work and then simply take the author’s place in the market is certainly not fair and would undermine the whole point of copyright. But, if the second work is transformative or parodic it is less likely that the new work will affect the market for the original.
So, in our case, it is unlikely that a single page of book page art would affect the market for the book at all. People would not buy the artwork in order to read the book. Anyone wanting to read the book would still need to purchase the book. This prong of the test weighs in favor of fair use.
Having analyzed, weighed and tallied all four factors, there is a strong argument that the fair use defense would apply to the use of book pages in artwork like the kind shown at the top of this page. Three of the factors weighed in favor of fair use and one was neutral.
So, although there is some risk that the owners of the copyrights in certain books, newspapers and magazines may take offense at a portion of their work being used in a craft piece, if the portion is small, it is used in a transformative way, and does not hurt the market for the copyrighted piece, there is a strong fair use defense available which means that the artwork is not infringing.
[1] 17 U.S.C. § 107 (emphasis mine).
[2] Oracle America, Inc. v. Google LLC, 886 F.3d 1179, 1196-1197 (Fed. Cir. 2018).
[3] Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 579.
[4] https://www.copyright.gov/fair-use/more-info.html
[5] Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 531 (9th Cir. 2008).
[6] Harper & Row, Publ’rs, Inc. v. Nation Enters., 471 U.S. 539, 551-552 (1985).
[7] Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 586-587.
[8] Harper & Row, Publ’rs, Inc. v. Nation Enters., 471 U.S. 539, 566 (1985).
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