A Brief Primer on the Fair Use Doctrine


Much as the vast corporate owners of intellectual property would like you to forget it, Americans have a right to use the creative works of others.  That right is straight from the Constitution, and is encoded in federal law.  It's the right that allows you to tape TV shows, and back up your CDs onto cassette.  It's also the right that allows me to display images I do not own (although, for the sake of the community of ballooning, I will voluntarily remove images and other materials whose owners don't want them displayed on this site).  Fair use amounts to the proposition that, as long as I'm not keeping a content owner from the legitimate uses of his/her/its intellectual property, I can display it, perform it, make new works based on it, and so on.  But my right to do so is not unlimited.

The federal statute that guarantees the fair use of copyrighted works includes a four-part test to determine whether a use of another's copyrighted work is "fair." The four parts of the test are:

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.

As you can see, the nature of this website lends itself pretty well to the Fair Use Doctrine.  As far as the first element, I'm not making any money on this site - in fact, it costs me money to host my web pages.  I do not display, nor would I accept, advertising.  The purpose of this site is strictly to educate (okay, and to entertain, but doesn't all good education do both?).  The first Fair Use element, therefore, is strongly in my favor.

The second and third elements are best analyzed together.  The reason for that is neatly illustrated by this site.  If you're a book publisher, and I've scanned a photograph from one of your books, then I've taken a very small portion of your "work" (the book).  But what if you're the photographer?  If I've scanned one of your photos, you could argue that I've taken the entire work.  I disagree, because the "work" includes the full resolution of the photograph, and even though I display some pretty sizeable images on this site, they don't have the full detail of the originals (a point that's been largely missed in the brouhaha over .mp3 audio files, which lack the detail of the CD originals).  Even trickier is the fact that, in some instances, I've cropped photos, enhanced contrast, added color to black-and-white images, or digitally removed entire parts of a picture.  In those instances, in addition to copying the works, I've created my own versions of them.  Those are called "derivative works," and fall into the same category as, say, a movie "based on" a book or play.  Derivative works are just another category of "use," though, so the legal analysis is the same.  Of all the elements of the statutory Fair Use analysis, the third is the least favorable to me as owner of this site.  I'll even go so far as to say that, in many instances, the third Fair Use element goes against me (the second is essentially neutral, particularly in light of the fourth - read on).  The score stands, by my count, at 1-1-1.  Not a slam dunk on either side.

Now, how about that fourth element?  This is where the nature of this site really comes into play.  Let's take scans of photos in books as an example.  All the books from which I've scanned images for this site are out-of-print.  Therefore, there is no market for the original (at least as far as the publisher is concerned - the rest is governed by another doozy, the First Sale Doctrine, that makes used CD- and bookstores legal, but even I must admit that's beyond the scope of this discussion).  At this point, the sharpest readers will have noticed the big ambiguity in Factor Four: the meaning of "value."  Does that mean strictly monetary value?  What about sentimental value?  Suppose someone's appreciation of a cherished photo would be forever destroyed if they knew it had been published on a ballooning history page?  By way of not really answering, I'll say that American courts generally recognize "value" to be monetary, at least for purposes of Fair Use.  But, like my book scans, the photos on this site are of limited commercial value anyway.  Most folks aren't interested in old Semcos and metal-basket Ravens.  They want to see shiny new balloons, brilliantly colored (and preferably shaped like cartoon characters or items from your grocer's dairy case).  And let's not kid ourselves, here - this site will never have high traffic.  Even if people did decline to buy prints of an old photo of a Piccard, because they could get it free here instead, we'd only be talking about a handful of people anyway.  Therefore, the fourth element weighs in favor of this site.  Final score, 2-1-1.

But that's not the point, is it?  I've already said I'd take down anything anyone wanted me to.  By now, just about anyone will be asking why I've gone to the trouble to write all this out, if I don't even plan to assert my Fair Use rights as a defense to taking images down.  The answer is that I want to demonstrate that I care about these issues, and that I've thought it through.  I'm trying to make a genuine contribution to the world of ballooning, here.  Even if I don't plan to assert a legal right, I want people to understand that I have it.  I don't want anyone asking me to remove images, even if I'm willing to do so.  I figure that, by demonstrating that I have a legal right to display a limited selection of other people's intellectual property, I might be able to strengthen my real position, which is this:

I believe I have the moral right.

I do not believe that I'm harming anyone, even a little, by putting up this page.  I believe I'm providing a service that will be of great interest to a very few people, of peripheral interest to several more, and entirely irrelevant to the rest.  I am working in the service of ballooning, and trying to put smiles on faces.  Whether or not I have the legal right to do what I'm doing, my sole purpose here is to make the world a better place.  It's my hope that visitors to this site will appreciate that, see that I'm doing good, and want to help me make this site better.  Legal rights are important, but, to me, where this site is concerned, moral rights are the whole ballgame.  If anyone feels harmed by my posting one of their pictures, then they are harmed by it.  That is the very last thing I want to do with this site, and that is why I will not hesitate to remove any content whose owner does not wish it to be here.

David M. Wesner, 5/25/04


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