An oft discussed and frequently misunderstood “defense” to copyright infringement is commonly referred to as the ‘educational use’ exception.
There are few court decisions that are binding, where the use of a copyrighted work in what appears to be an educational piece but is really employed for the purpose of promoting a personal business or service did not qualify under the fair use exception even though Ed has had many of those cases. (Note: under NY Law a model whose image is used without written consent in such type uses has a much easier course to victory.)
Example: An ad urging everyone get tested for diabetes run by companies who sell insulin and/or doctors who treat diabetes and paid for by a “non-profit” foundation. The real intent is sell products and/or services rather than to inform the public about diabetes.
Get ready for some legal stuff now:
Basic Books, Inc. v. Kinko’s Graphics Corp. was a case in the Federal Court in NYC. The court discussed the issue of, “how to distinguish between a use which is “commercial” in nature, or a use which is for a “nonprofit educational” purpose.
That court used several factors:.
- Purpose and character of the use
- Transformative use: Merely “repackaging” or “republishing” is not likely to pass the test
- Commercial use: Was there intention to make profits from this use? (Some/most cases say this can be interpreted as an attempt to “steer eyeballs” to a commercial site regardless of whether any profits were made or could be ascertained.)
- Nature of the copyright work: Factual vs. Fictional
- Factual is more likely to be acceptable for public use and less likely to be found as an infringement. This is somewhat vague but it is often a factual determination of whether the use was a true PSA or not.
- Fictional is less likely to be acceptable for public use and more likely to be found as an infringement. For example incidental use in a novel or TV drama like ‘Law and Order” which although “ripped from the headlines” is clearly a work of fiction.
- Amount and substantiality of the portion used
- Quality of the work: In our opinion you can read into this factor the reputation of the photographer. The bigger the reputation the less likely an “educational use” will be found.
- Quantity of the work: The more work taken the less likely a fair use determination will be made by a judge/jury.
- Effect of the use on the relevant market: Would the use, adversely affect the potential market for the copyrighted work? For example does this photographer sell fine art prints of the image for $10,000 a pop and live on a yacht thanks to such sales.
A court can also take in to consideration any licensing or “permission fees” to ordinarily use his/her work as a main source of income for the plaintiff. (Ed’s opinion based on prior judge’s off the record opinions is that it need not be a main source – just a meaningful income producer for the photographer.)
Harper & Row, Publrs. V. Nation Enters was a US Supreme Court case which – in English – says that the question that must be asked when determining what is considered to determine the issue of nonprofit use vs. profit enabled use is whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.
SCOTUS is the highest court in the land and so Ed uses the above decision in court in his cases. Why should a judge (or Ed) attempt to go out of his/her way to argue with the nine folks who get lifetime appointments?
Here is a real life scenario with the names etc. changed:
A NYC big shot oral surgeon who is a professor at a school of dentistry is sent to Chad. He/she makes a presentation at a government run hospital of a new, cheap and effective way to fix cleft palettes of indigent children. The process involves using a bone like artificial material. Three big pharma companies each make different versions of the same material.
The doctor’s trip was paid for by company A. In the power point presentation to the African hospital and its staff, the surgeon only mentions company A’s product and show photos of that product. Company A paid the surgeon to make the presentation and picked up the expenses for the trip.
Company A’s defense for the numerous infringements of registered images was “educational purposes”. The judge laughed…a lot.
Bottom line: there is no one size fits all answer to these type questions.
#1 by Meto on March 2, 2016 - 2:15 am
How does “transformative use” for purposes of Fair Use differ from “transformed” as far as the definition of a derivative use. I’ve never really understood this.
( I fear Scalia scowling down on courts which continue to focus on “transformative use” given the phrase no where appears in 17 USC 107.)
#2 by Ed Greenberg on March 8, 2016 - 5:35 pm
Unfair criticism of Judge Scalia who almost always referenced the exact wording of the US Constitution. The Constitution contains the right to copyright right there in black and white and thus Scalia never (to my knowledge) ever disputed such a right because the founders specifically wrote it in for you to possess and exercise for the benefit of the creator and society at large. .
Fair use as written in USC Title 17 is:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
A derivative work defined in the Copyright law word for word is: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
Whether a given work is “transformative” is determined on a case by case basis by a court which typically applies two questions to the facts of each case:
1. Has the material taken from the original work been transformed by adding new expression or meaning?
2. Was value added to the original by creating new information, new aesthetics, new insights, and understandings?
We can get into some of the real life examples of this in future articles. Suffice for now to say that merely copying or substantially copying an original work to be employed for the same or similar purpose of the original work will likely be determined to be a derivative. If not authorized by the copyright holder of the original work, the creation of an unauthorized derivative will be deemed an infringement and generally not a fair use.
#3 by Ed Greenberg on September 11, 2016 - 4:58 am
See our newest article entitled “Implied Consent”. In that case the other side claimed use of images on movie ads, posters and solicitations for film distribution qualified as “fair use” because they admittedly Photoshopped the original image. There was no license sought or obtained from the creator to use the image not to mention alter it.
Nevertheless the attorneys asserted the defense and the Judge has tossed on its ear.
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