An Application of Fair Use Laws
Typically, a fair use trial involves the author or publisher whose original work was allegedly copied unfairly, and the publication that copied the work. Such a case can be illustrated as follows: A mystery novelist read a book critic’s review of his recently published novel. The mystery novel was highly anticipated by several other publications prior to its release. Upon finding that the book critic quoted a portion from the novel, in particular the 60 words which revealed the solution to the mystery, the novelist was incensed. His publisher (the plaintiff) proceeded to file suit against the publisher of the magazine (the defendant) for unfair use. The plaintiff accused the defendant of violating fair use, particularly among the four criteria, the use of a substantive portion of copyrighted material, and the threat of commercial damages.
The defendant responded to these claims, citing fair use. First, the purpose and nature of the use was fairly newsworthy, as the mystery novel had been highly anticipated prior to its release. Moreover, a critique of a novel aims to be “transformative” (Middleton 258). By using a portion of the novel verbatim, the book critic only sought to nest the copied material in his own thoughts and critiques of the novel. Also, the defendant contended that the portion revealed in the book review was a paltry 60 words – miniscule compared to the length of a typical novel. According to Section 107 of the Copyright Revision Act of 1976, one of the four criteria of determining fair use is the amount of the portion copied in relation to the whole work (Middleton 258). Certainly, the defendant argued, there was more substance to be revealed in a novel than 60 words could have elucidated.
With respect to the claims of commercial damages, the defendant established the fact that the novel was already released to the public, and hence was already wholly in the public domain. A potential consumer of the novel could just as well have learned the solution to the mystery by overhearing a conversation from others who had purchased the book, as he could have by reading the review in a magazine. Unlike Harper & Row, Publishers, Inc. v. Nation Enterprises, Inc. (1985) in which a key portion of President Ford’s memoir was revealed pre-release in a magazine that had stolen the manuscript, the mystery novel was already subject to review. As Justice O’Connor had written in the opinion for Harper & Row, “Under ordinary circumstances, the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use” (Harper & Row, Publishers, Inc. v. Nation Enterprises, Inc., Abstract). Since the first public appearance of the mystery novel was not featured in the book review, commercial damages could not fairly be attributed to the defendant. The defendant concluded that the book critic was merely providing a transformative view of the mystery novel – a novel that was already accessible to the public.
Despite the defendant’s response, the plaintiff maintained that the magazine publisher had violated the terms of fair use. The plaintiff rejected the book review as a transformative piece. While the critic may have lent his own original thoughts and critiques of the mystery novel to the review, it was still unnecessary to reveal the mystery’s solution. The book publisher alleged that the critic was simply opportunistic to copy such a critical part in a review. Similarly in Harper & Row, the Supreme Court found The Nation to be less dedicated to reporting news than it was to stirring up a commercial opportunity for itself (Middleton 263).
Citing its strongest argument, the plaintiff staked its claim for commercial damages by the defendant. Afterall, a mystery novel’s appeal lies largely in the solution. A mystery novel, the plaintiff contended, is like a wrapped present whose inner contents are revealed by a small rip in the wrapping paper. By copying a small but significant portion of the novel, the publisher unwrapped the novel’s proverbial present. The plaintiff harkened back to the case of Wainwright Securities Inc. v. Wall Street Transcript Corp. in which The Wall Street Transcript’s summary of reports prepared by Wainwright was also problematically revealing (Middleton 266). Because the summaries were so comprehensive, and utilized the most instructive and original details of the reports, a lower court held that the summaries infringed Wainwright’s copyright. The reports effectively precluded consumers from purchasing the actual reports (Middleton 266).
Similarly, by revealing the solution to the mystery, the magazine diminished the novel’s appeal for potential consumers. It was not necessary for the magazine publisher to prove actual damages to demonstrate unfair use. Rather, courts consider the commercial damage that copying presently causes and may potentially cause to an original work such as a mystery novel (Middleton 258, 266). While the mystery novel was already released and was available to the public, its future market may have been compromised if other book reviewers were permitted to follow this continuum of revealing the solution to the mystery.
Information is increasingly accessible and disseminated through motley media. When information is in high demand, sometimes copyrights are undermined for a variety of reasons. Portions of an author’s original work, for example, may surface in another publication. The publishers who copy this material, particularly for commercial opportunities, must use the gravest of care. Copyright laws exist to protect the commercial privilege of an author’s original work. Copyright also exists to help further knowledge-sharing in the public domain under terms of fair use. When any part of an author’s original work is copied, questions of purpose, nature, substantiality, and effect of the copyrighted work arise. When, for example, an author is displeased to find his work is partially revealed in a magazine, he will invoke the terms of fair use. As most fair use cases ensue, the four criteria for fair use weighed heavily, although the term of commercial privilege often bears the most weight.
