Good morning, all. Welcome to Fair Use/Fair Dealing Week!
Created to celebrate the fair use/fair dealing exemption in copyright law, and all that this exemption makes possible for creators of new knowledge, Fair Use/Fair Dealing Week is in its fifth official year. Various institutions around the world celebrate it by offering webinars, lectures, activities and workshops.
The Copyright Team is doing our part for Fair Use Week by providing you with a daily dose of important fair use cases, links to actual legal rulings, and even a fair use comic for each day. Enjoy!
“Famous” Fair Use Cases: Text Fair use (mostly). In a case alleging 75 instances of infringement in an educational setting, a district court, proposing a fair use standard based on less than 10% of a book, determined that 70 instances were not infringing. On appeal, the Eleventh Circuit rejected the 10% standard and emphasized the importance of a flexible case-by-case fair use analysis. The case was remanded to the district court which, in 2016, found the majority of instances to be fair use. Important factors: On remand, the second factor (the scholarly nature of the work) and the fourth factor (impact of the use on the market value) weighed in favor of fair use. (Cambridge University Press v. Patton, 769 F.3d 1232 (11th Cir. Ga. 2014).
Not a fair use. A biographer paraphrased large portions of unpublished letters written by the famed author J.D. Salinger. Although people could read these letters at a university library, Salinger had never authorized their reproduction. In other words, the first time that the general public would see these letters was in their paraphrased form in the biography. Salinger successfully sued to prevent publication. Important factors: The letters were unpublished and were the “backbone” of the biography—so much so that without the letters the resulting biography was unsuccessful. In other words, the letters may have been taken more as a means of capitalizing on the interest in Salinger than in providing a critical study of the author. (Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987).)
Monica Moore, Scholarly Communication & Undergraduate Engagement Librarian