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

A New York Court Ruled that Clipping Content from Internet without Payment is not Covered by Fair Use

Meltwater is a Norwegian clipping service that monitors news about its clients on the Web. These paying clients include companies and governments that fork out good money to outsource trolling the internet for news items themselves. Meltwater provides them with news alerts, newsletters and access to a searchable database.

Those newsletters include introductory sections of news stories (aka “ledes”) that were taken from the Associated Press (AP) and other sources. AP promptly demanded that Meltwater buy a license to distribute news story excerpts. Meltwater refused, pointing out that lifting those ledes from the internet is covered by the fair use rules. AP then sued Meltwater for copyright infringement.

In court, Meltwater argued its activities are identical to those of search engines such as Google (which is showing headlines and text snippets in search results and is covered by the fair use rules. Meltwater would therefore be allowed to clip and display news stories that were found on internet.

U.S. District Judge Denise Cote disagreed and ruled that there are limits to the amount of content an internet scraping service such as Meltwater can lift from internet without payment stating: “Instead of driving subscribers to third-party websites, Meltwater News acts as a substitute for news sites operated or licensed by AP.”

This ruling is also based on the “click-through” rate of the news stories that Meltwater dissipated. According the judge, Meltwater had lifted more than was necessary for a search engine and that is therefore harmed AP stating: “Paraphrasing James Madison, the world is indebted to the press for triumphs which have been gained by reason and humanity over error and oppression [...] Permitting Meltwater to take the fruit of AP’s labor for its own profit, without compensating AP, injures AP’s ability to perform this essential function of democracy.”

Reactions to the ruling were mixed. According to Techdirt’s Mike Masnick, the judge misinterpreted the “fair use” rules, while AP and the New York Times were happy.

Needless to say, Meltwater appealed - so stay tuned!