NOVEMBER 2003
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Web Site Design:
Can you use graphics or music you don't own?
by William S. Wyler
Schwartz, Manes & Ruby
You want to create a unique and attractive web site. The site is designed to produce a message, to sell products or services or to produce a response. Whether you are creating the site as a designer, for someone else, or you have hired a designer, to create the site for your business, your interest is in achieving results. To create an attractive and effective site, it is almost certain the site will include graphics, video, audio or all three. However, the question remains, can the site make use of graphics, audio, video or animation owned by someone else, without infringing on the copyright.
Unlike patent, copyright does not create a monopoly of use. The copyright act gives a copyright owner certain specific rights for a set length of time. However, there are exceptions to those exclusive rights, the most important of which, at least for general web site use, is called the doctrine of "Fair Use." Fair Use comes from the Copyright Act and spells out how and when someone may lawfully use copyrighted material which belongs to someone else. Fair Use is a complete defense to a claim of copyright infringement.
For those who wish to go to the source, the Fair Use doctrine is located at Title 17 Section 107 of the United States Code. In summary, it says that the rights of a copyright owner are limited and that someone other than the owner may use a copyrighted work, if that use falls under the definition of Fair Use. Determining Fair Use is not an exact science and can be very complex. The statute requires that the use of the copyrighted work be examined to determine which of the factors suggested in the statute apply.
The statutory factors to be considered in determining Fair Use include:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
When "Time", "Newsweek" or "Entertainment Tonight" use quotes, clips or pictures from politicians, movies, songs or books in their reviews, they are usually depending on the Fair Use exception to protect them. They do not normally obtain permission before putting that material into their magazines or shows, which magazines or shows are sold for profit. While the magazines are, themselves commercial ventures, the purpose of a book review is more educational than commercial. The commercial value of the magazine is all of the information contained in an issue, not merely the review of the book play or whatever. If, on the other hand, the magazine uses the quotes from a new book as a marketing device, to increase sales of the magazine, or makes the work the cover story, the Fair Use determination can change. In such a case, the use would clearly become commercial.
In general, if the use of the copyrighted work is commercial, rather than non-commercial or non-profit, the burden of proving Fair Use will be on the user, to show that the use is not an infringement of the copyright. If the use is non-commercial, the burden of proof will fall on the copyright owner, to show that he/she/it will be harmed in the market place. This burden of proving harm applies to both the original copyrighted work and any spin off products, known as derivative works in "copyright speak."
(2) The nature of the copyrighted work.
The more fact based or utilitarian a work, the more likely that a Fair Use defense will be found by a court. Works that are more artistic or highly imaginative are harder to justify use under Fair Use. For instance, use of generic "elevator" music might be easier to prove a Fair Use defense, than the Beatles "Strawberry Fields Forever," even though both are subject to protection under the Copyright Act.
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
When a reviewer takes a few passages from a novel, the reviewer is taking a small portion of the overall work which is protected by copyright. The use of a small portion of the overall work is a factor in favor of finding Fair Use. By the same token, the use of a few bars of music, taken from an entire score, may tend in favor of a finding of Fair Use, while use of the entire score or a substantial part of the score would mitigate against a Fair Use finding. Often it can be argued that the use of a small portion of a work may increase interest in the work and thus the value of the entire work.
This can be a tricky area, however. If the small portion, which is excerpted, is the "signature" passage of the work or music score, that small portion may be sufficient to defeat a claim of Fair Use. The Supreme Court has held that it is the "quality" of the work used, not merely the "quantity." So even if only a small portion of the work is used, if it is enough to "give away the plot" or otherwise cause the value of the work to diminish, the use will not fall under Fair Use.
(4) The effect of the use upon the potential market for or value of the copyrighted work.
This is easily the most important of the factors. The use of the copyrighted work by the subsequent user, in this case the web site, can have three possible consequences. The use could increase the demand for the work, decrease demand or have no effect on demand for the work. Obviously, if the user can show that the use was likely to increase demand for the original work, the Fair Use argument would be very strong. For example, a piece of music which was popular twenty years ago, but has been generally passed over and forgotten, could be given new life by its use on a web site. However, the most important requirement is a showing that the use of the work does not have an adverse effect on the market for the work.
The need to show that there is no adverse effect from the use of the work includes showing that there is no adverse effect on derivative works, as well as the original work. A movie which is based on a novel is a derivative work of that novel. The use of certain clips from the movie may not effect the novel sales but could effect the movie attendance or sales of the DVD version. Of course, the effect of the use could be increase DVD sales rather than decrease them, which would help support a claim of Fair Use.
These four factors are not exclusive. The statute merely suggests these four categories be considered in a fair use determination. The courts may also look at other relevant factors, of a similar nature, in determining Fair Use. It is also not required that every listed factor be present to find Fair Use. Rather, the courts are required to balance the various factors to determine whether the claimed Fair Use falls more within the factors of the Fair Use defense than outside of it.
The statute also does not state how each factor is to be weighed. Each court weighs the factors on a case by case basis. It is clear, however, from years of decisions, that each factor does not have to be present in each case. Rather, the courts weigh the factors based on the facts in each case.
The decision as to whether the use of a copyrighted work constitutes a Fair Use is a complex one, and should not be undertaken without skilled legal consultation. The main purpose of this article is to advise readers of the existence of the "Fair Use" doctrine and to make it clear that the owner of a copyright does not have a monopoly power on all uses of the copyrighted work in all circumstances. So, can you use the graphics and music someone else owns? Maybe.
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