What constitutes “fair use” of copyrighted material?

There has been a lot of discussion recently about a Las Vegas company named Righthaven, LLC. The company has been filing numerous copyright infringement lawsuits against websites and bloggers based on the excerpting of all or part of copyrighted news articles which originally were published in the Las Vegas Review Journal – and always without any kind of notice to the website regarding the infringing content.  The lawsuits have brought the forefront the issues of copyright infringement and what constitutes "fair use" of copyrighted material. 

Many people who post content online may feel that they can lawfully post all or part of an article originally published in a newspaper so long as appropriate credit to the original source is given (as well as possibly a link back to where the article appeared on the Las Vegas Review Journal’s website). Such thinking confuses plagiarism with copyright infringement. While giving proper credit to the original source may absolve a third party of claims of plagiarism, such actions may constitute copyright infringement.

These same people may also be under the impression that their posting of such content (with proper credit and link back) constitutes a so-called “fair use” of such content. While copyright law does protect certain uses of a copyrighted work as “fair use” – for example, when a work is reproduced for purposes of criticism, comment, news reporting, teaching, scholarship, and research – whether a particular use constitutes “fair use” actually involves an analysis of several factors used by courts.

The parameters outlining what constitutes fair use come directly from the Copyright Act itself (17 U.S.C. §107):

[T]he 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.

One factor often overlooked by many website operators is the commercial nature of their websites. Think your website is non-commercial – well, if you have pay-per-click ads being displayed on your website and you are generating some revenue from the website, then your website is more commercial than you think.

So what is a website to do in order to avoid committing copyright infringement if you want to mention a particular newspaper article on your website (or if you are a third party that wishes to post a newspaper article in a forum on a website). While different newspapers may have different policies about how much of their article can be used, the Vice President and General Counsel for the company which owns the Las Vegas Review Journal has provided some guidance for third parties regarding how to properly cite Las Vegas Review Journal articles – and the advice would certainly be applicable to any newspaper articles. Mr. Hinueber is informing interested parties that the appropriate procedure for using stories published in the Las Vegas Review Journal is to post the headline of the story and then the first paragraph with a link to the original story.

Accordingly, if you wish to quote from a Las Vegas Review Journal story on your website – and you do not otherwise obtain a non-exclusive license from the Las Vegas Review Journal to post all or part of the story on your website – then you should post only the headline, the first paragraph of the story, and a link to the Las Vegas Review Journal’s website where the original story can be found. The following example illustrates what is acceptable to the Las Vegas Review Journal:

$145 MILLION BUDGET SHORTFALL: Union proposes pay cut for all employees in Clark County School District

By JAMES HAUG LAS VEGAS REVIEW-JOURNAL

A 1.5 percent pay cut by all 38,500 employees in the Clark County School District would prevent layoffs and resolve the budget crisis for the 2010-11 school year, according to a proposal from the union representing school principals and administrators.

The rest of the article can be viewed by clicking here.

An alternative approach would be to only excerpt a small portion of the article – do not copy and paste the entire article, but instead quote just the part that is most relevant to the point you are trying to make on your own website. The less you quote, the more likely such use will be considered fair use.

Finally, copyright law only protects a newspaper’s unique expression of newsworthy events (i.e., the particular way that one of its employed writers describes a news event) – a newspaper cannot claim exclusive copyright rights over news events themselves. As such, any person is always free to review a story from a newspaper article and then, in his or her own words, describe or recount the factual details of the news story that the person learned from the newspaper article. So long as there is not a substantial copying of the precise, unique copyrighted written text that the newspaper used to describe the news event, then the newspaper will have a much more difficult time making out a case of copyright infringement.