Fair Dealing/Fair Use
This page originally created by Bobby Y. (2020-21)
Fair dealing and fair use are related concepts that address the user's rights under copyright law. Fair dealing permits the use of copyrighted work for certain purposes without first receiving permission from the owner, obtaining a license, or paying a fee. The meaning, scope, and rigidness of fair dealing vary depending on the legal system that defines it. Fair use is also an exception to copyright infringement. Fair dealing is granted by many common law jurisdictions of the Commonwealth of Countries, whereas only the United States uses fair use.
Copyright laws of fair dealing enumerate all the purposes of using copyrighted content that are fair. Thus, if a work is used for an unmentioned purpose, it cannot be fair dealing regardless of the copier's possibly meritorious goals. As well, guidelines are considered to determine whether works used for the stated purposes are legal. Fair use is covered under Title 17 of the United States Code. In contrast to fair dealing, Title 17 provides an open-ended list of fair uses of copyrighted content, and guidelines apply for all works. This way, it can be more difficult to identify whether something is fair use, but the court can also be more lenient.
Fair dealing refers to the rights of a user who is using or dealing with a copyright-protected work when permission has not been granted. Exceptions to the use of copyrighted materials in the context of "fair dealing" are "research, private study, criticism, review, news reporting, education, satire, or parody as long as what you do is 'fair'"(University of Waterloo). There are many factors to consider when determining what is fair or not when the content or material is being used. The legal system would look at things such as the purpose or the amount being used. These can all be viewed in the Copyright Act
The Rogers vs Koons case
The case involves Jeff Koons, a famous and celebrated artist, and Art Rogers, a photographer. In a photograph taken by Art Rogers, a couple is seen holding a line of 8 puppies as they are hugging them. This photograph was used as a source of income by Art Rogers, who sold it as postcards and products that are similar. About 3 years later, Jeff Koons was in the process of designing his next sculpture when he noticed the photograph Art Rogers had taken, he took "inspiration" from the photograph and recreated the image as a sculpture. Jeff Koons sold these sculptures for thousands of dollars, making him significant profit. When Art Rogers found out about Koon's sculptures, he was appalled and decided to sue Koons, claiming that Koons copied his work and violated copyright laws. Koon argued that he used it as free use material and used it for a parody.
"Koons ended up losing the court case to Art Rogers because the 2 images were "too close". The court came to this decision because they said the "typical person" would be able to tell the difference between the 2 images. Koons ended up paying Roger a monetary settlement"(Kaitlyn Ellison, 2013)
This case was so famous since not only was it between popular artists. It also helped out with a larger issue that surfaced in the art world. This issue is "Can you build upon another’s work to create your own original piece? And if you do so, does that constitute derivative work?"(Kaitlyn Ellison, 2013)
Here is the sculpture made by Jeff Koons (unfortunately there isn't any licensable image of the photograph by Art Rogers. So to view the image google "puppies by Art Rogers")
The Copyright Act, established in 1985, allowed for certain uses of copyrighted material for research, private study, education, parody, satire, criticism, review, and news reporting—as long as certain conditions are met.
- The purpose of the dealing.
- The character of the dealing.
- The amount of the dealing.
- The nature of the work.
- Available alternatives to the dealing.
- The effect of the dealing on the work.
Under the Copyright, Designs and Patents Act 1988, fair dealing is limited to the following purposes of using copyrighted content: research and private study; criticism, review, quotation and news reporting; education; recording for time-shifting; and parody, caricature and pastiche. Next, several factors need to be weighed to decide if copyrighted work used for these reasons are fair.
Questions that courts factor into determining whether a use of copyrighted work is fair includes:
- Does using the work affect the market for the original work? If the use of a work acts as a substitute for it, causing the owner to lose revenue, it is unlikely to be fair.
- Is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount that was taken? Usually, only part of a work may be used.
The parallel doctrine of fair dealing in the United States is fair use.
- Purpose and character of the use.
- Nature of the copyrighted work.
- Amount and substantiality.
- Effect upon work's value. <be>
1.5 what is fair dealing and how does it relate to copyright? Copyright at Waterloo. (2013, October 24). Retrieved April 7, 2022, from https://uwaterloo.ca/copyright-at-waterloo/faq-1-5
Ellison, K. (2018, April 26). 5 famous copyright infringement cases (what You can learn). 99designs. Retrieved April 7, 2022, from https://99designs.ca/blog/tips/5-famous-copyright-infringement-cases/
Use & remix. Creative Commons. (2019, November 14). Retrieved April 7, 2022, from https://creativecommons.org/use-remix/
Wisniewski, J. (2017, July 10). "String of Puppies," by artist Jeff Koons, at the Whitney Museum of American Art, New York City. Flickr. Retrieved April 7, 2022, from https://www.flickr.com/photos/59958425@N04/35662577142