Best of TOC, 3rd Edition

Chapter 10. Legal

Fair Use: A Narrow, Subjective, Complicated Safe Haven for Free Speech

By Jenn Webb

Questions of fair use continue to arise, with the most recent fair use judgment coming from a U.S. federal court in Nevada, which ruled that excerpting copyrighted materials — up to 10% of the original work in the case of a newspaper story — is fair use.

I reached out to Miles Feldman, co-chair of the litigation and intellectual property departments at the Los Angeles-based law firm of Raines Feldman LLP, for more on the topic of fair use. In the following interview, Feldman takes a look at factors courts consider, offers a few guidelines and best practices to follow, and highlights some fundamental problems with Creative Commons Licensing.

How is “fair use” defined and what is its legal purpose?

Miles Feldman: Basically, the fair use doctrine creates a narrow safe haven for authors to quote, comment on, or parody copyrighted material. It was built into our copyright laws to protect freedom of speech and our First Amendment rights.

Does the breadth of the fair use guidelines cause confusion?

Miles Feldman: There are four factors courts look at to determine if fair use applies:

• The nature of the work used
• The nature of the new work
• The amount of the original work used in the new work
• The effect on the market for the original work

These factors do involve some subjectivity. Uses that are more likely to be found to be fair are those that do not displace sales of the original work. For ...