1.
abandoment: surrender rights to copyright & allow public to copy
-not just b/c someone doesn't sue for infringement
2.
amount and substaintiality: -compare part used to the whole (% of work used)
-more use = less fair
-quality of material used accounts too
-if only small part copied, but part is critical to orig work, may be unfair
3.
effect of use on potential market: -how use will affect potential value of work
-most important
-some degree of harm is tolerated due to public benefit of use
-current and future markets should be considered
-if work reduces potential market for orig work, not fair
4.
fair use: these uses should be allowed due to some public benefit derived from them
-to use work in a reasonable manner without owner's permission
5.
fair use basically is a: balancing test between the social benefit that the public derives from the unauthorized use against the interest of the copyright owner
6.
fair use is a defense: not a right
-can only know if it is fair use if you are sued & court rules that it is
-crediting author does not = fair used
7.
fair use origin: -courts use inconsistently
-added in CR Act 1976
-folsom v marsh = first case (foundation)
8.
fair use provides: -wide access to creative works (CR intent)
-right of free speech in 1st ammendment
-encouragement of advancement of learning and knowledge
9.
Fair Use: 4 Factor Test: 1. purpose or character of use; for commercial, nonprofit, education
2. nature of CR work
3. amount and substantiality used in relation to orig work
4. effect on potential market of orig work or value
-each must be considered & weighed by court
-no set amount for each (but generally 1 & 4 weigh heavily)
10.
Folsom v Marsh: 12 vol George Washington biography rip-off
11.
independent creation: -if defendant can prove work was created independently = not liable for infringement
-if no copying, there's not infringement (infringement = copying)
-prove work was created prior to plaintiff's work
-witnesses, independent documentation (demo tape)
12.
Nature of CR work: -use of unpublished work may be unfair because author might not want work in public
-least important of the 4
13.
not infringement: Use for purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research
14.
parody: -often fair use
-literary or artistic work that imitates the style of an author or work for comic effect or ridicule
-work copied must be the object of parody in part to = fair use
15.
parody v satire: -uses work to comment or make fun of work
-satire uses work to comment or make fun of something other than the work = not fair use bc that work is not required to comment on society
-parodies do NOT always = fair use
16.
purpose and character: -det. purpose of use
-commercial = weighs against fair use generally
- crux of the for profit/non-profit distinction is whether the use being made is for use without paying the customary price
-productive or transformative work = more likely fair use
-if use transforms work into new work, may out weigh commercial use
-good faith/bad faith weighed in sometimes
-failure to obtain CR owner permission does not mean bad faith
+Campbell v Acuff-Rose
17.
Sec. 107: -Fair use is limitation on exclusive rights of CR owners in section 106
-fair use is not defined
-examples provided, but not exhaustive
-4 factor test
18.
stat. limit: 3 years from beg of infringement
-can only collect damages from 3 years prior to suit
-unless infringing is concealed
19.
statute of limitations: max pd. in which a claim can be made
-encourage ppl to promptly enforce their rights
-witness memory fades
-relevant docs. may be lost
-witnesses may dies be unavailable
