Main Index : Writings of Marie A. D'Amico, Esq.

Fair Use Free Takings

Marie D'Amico August 14, 1995

With the advent of digital technology, making a copy and using another's copyrighted work has become teenager's play. This action may be widespread but it's also generally illegal as violative of the Copyright Statut e. There is, however, an important exception, fair use. You can legally copy and use part or all of a copyrighted work if, after considering four factors, your use is conclusively fair.

The factors are whether your use is commercial or nonprofit, the nature of the copyrighted work, the amount you used, and the effect upon the copyrighted work's market. As Kerry Konrad, co-lead litigation counsel for Lotus Development Corporation , succinctly said, "if your use is private, limited, and for the purpose of reference and illustration only, it's likely to be fair." For example, ASCAP , the American Society of Composers, Authors & Publishers, says if you're using a copyrighted song in a multimedia presentation in-house for your sales force, and you don't charge admission, that's free fair use. But, as Jay Monahan, Director, Domestic & International Anti-Piracy, Walt Disney Television in Burbank, California, says, "Where a valuable intellectual property is involved, such as a well-known song or animated character, use of even a few bars or a single picture could easily exceed the bounds of fair use."

If you want to protect yourself, you can request permission from the copyright owner, but be prepared for rejection even if your use is fair. When Michael Tchao was an Apple product marketing manager, he wanted to use a Star Trek postcard for an Apple press event invitation. When Apple contacted Star Trek's owner, Paramount Pictures, they were told they needed William Shatner's permission, although the event was private and free. MCA refused to license, even for payment, a one-second sample of the Beatles musical classic "Get Back" for use in a developer's About Box providing no reason for rejection other than "no."

If you're going to use someone's copyrighted work without consent or payment, make fun of it. Parody is one of the best freebies because it allows you to take the heart of the copyrighted work. The Supreme Court permitted 2 Live Crew to make a rap rendition of the Roy Orbison classic Oh Pretty Woman even after being denied permission by the publisher. The Court said the song was fair use because, in contrast to the "white-bread original," it "reminds us that sexual congress with nameless streetwalkers is not . . . without its consequences."

Greg Christie, a Newton developer, discovered some companies like General Magic don't have the judges' sense of humor. He designed a bitmapped, nonworking parody of MagicCap for Apple's Newton as a whim and placed it free on CompuServe . General Magic 's lawyer sent him a cease and desist letter and rather than fight, although his use was likely fair, he pulled the screens.