The legal Concept of "Fair Use"

Web designer, bloggers, content writers, journalists, professors/teachers and comedians want to use stunning images, photos, quotes or statements that were created by others. When is it legal to use such content without asking permission or payment?

That is decided by “fair use”. In legal terms: “Fair use was created to allow use of copyright (sic) material for socially valuable purposes such as commentary, parody, news reporting, education and the like, without permission of the copyright holder.”

In plain English: “fair use” allows people or companies to use those materials (text, images, photos, etc.) without it being an infringement of copyright. In such cases, the owners of those copyrighted work must allow their work to be used by designers, bloggers, content writers, journalists, teachers, comedians, etc. without any legal or financial obligations. It must be noted that the burden of proof is the one using it; not the owner of the work. (In legalese: “affirmative defense”)

The reason for “fair use” is to allow reasonable and limited use of the copyrighted work. A journalist is allowed to quote from a newly published novel in the review it. A comedian can quote from copyrighted text, use a copyrighted picture or photo or directly quote a celebrity to make fun of them. Teachers and professors can use passages of copyrighted works to explain something to their students or to make a point.

As a rule of thumb, using text under “fair use” normally consists of using a small part of the copyrighted work and includes crediting the author (with a link to the source/author’s website). Fair use is for non–commercial purposes.

The criteria of what is “fair use” are defined in the opinion of the famous Joseph Story in Folsom v. Marsh, 9 F.Cas. 342 (1841). This so-called Four Factor test consist of:

1. the purpose and character of the use (non-commercial, educational, parody or non-profit)

2. the nature of the copyrighted work

3. the amount and substantiality of the portion used of the copyrighted work

4. the effect of the market use / market value of the copyrighted work

Why the Lawyer cum Champion of the Fictional Black Peter Called It Quits

The lawyer acting as the Erin Brockovich of the (fictional) Black Peter stopped being part of the movement that strives to rectify the image of Black Peter.

For those of you not familiar with the Black Peter phenomena – let me explain. According to folklore, Saint Nicholas travels every year from his palace in Spain to the Netherlands by steamboat, to have his servants (Black Peters) climb roofs and stuff presents down the chimney, or to climb down the chimneys themselves stuff presents for children down chimneys. In short, Black Peter is the equivalent of an Santa elf in the US. Each Black Peter has his own job; there is a Head Peter (manager), Navigation Peters (to navigate the steamboat from Spain to the Netherlands), Packing Peters (for wrapping the presents), etc. Over the years, Black Peter has a valued assistant of the absent-minded Saint Nicholas.

For the last few years, the “anti-Black Peter” movement has been striving to adjust the appearance of Black Peter by getting rid of his skin color and curly hair.

Frank King is a lawyer of Suriname origin who became the figurehead of the anti-racist movement to take down the stereotype of Black Peter. However, this came with a price. He ended up being exposed to rants of people wanting to keep the Black Peter persona. On top of that, his activism also gobbled up “an enormous amount of time”.

He made legal history with a landmark ruling. A Dutch District Court ruled that the prominent role that Black Peter plays in the entrance of Saint Nicholas infringes on the civil rights of persons of color. The District Court argued that although the servant and the saint might be fairy tale characters for many people, the appearance and behavior of Black Peter could be perceived as persons of color being subservient and simpletons.

King was proud of his achievement. “The District Court made it very clear that Black Peter is racist that nobody can deny anymore. Black Peter must change. The dark skin color has to go, as well as the curly hair.”

King was replaced by white civil rights lawyer Wil Eikelboom. King was disappointed that a white lawyer took over. He stated: “I am a person of color. I empathize with those sentiments. That is crucial for a court case like this, since it’s also about emotions.”

Frank King is convinced that the demise of Black Peter is only a matter of time. He predicts that “Within a couple of years, there will be no more Black Peters whatsoever."

Let’s see what will happen in the coming months!

(Image courtesy of photographer Peter Dejong)