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The Internet has turned Copyright on its ear.

Our U.S. Copyright Act is not the most creator-friendly legislation one could imagine. While big companies — the ones that buy up the rights to popular songs and cartoon characters — have been able to use it very effectively, the protections it offers small-scale individual creators is less helpful. First, in order to have meaningful protection for anything you create, you have to register it with the Copyright Office. Second, litigation is expensive, impractical, unwieldy, drawn out, and too often ineffective.

Add to this the fact that the kids being brought up with the Internet are seldom educated about the entire idea of copyright: To them, everything on the Internet is supposed to be “free.” Fortunately, the Digital Millennium Copyright Act does give recourse to creators who find their work used without permission on other people’s websites.

However, there are instances where you ARE allowed to use a part of someone else’s work. “Fair Use,” as it’s called, is the idea that while the creator does have rights, they are not exclusive. Other people MAY use a part of your work if that use meets certain tests: The following four issues are considered:

• What is the purpose and character of the use? Educational and nonprofit usage gets more leeway — but not a free ride. Commercial use — something that YOU will profit from — is treated more strictly by the courts.
• What is the nature of the copied work? Is it a highly creative poem or song lyric, or is it a simple list? Highly creative work gets more protection than simple info bytes.
• What is the amount or substantiality of the part you wish to copy? The law doesn’t give specific guidelines, but here are some examples: You might be able to use one or two lines of a song, but not more; From a book, you might be able to use 200 or so words. From a magazine article, you might be able to use a paragraph.
• What is the effect of the copied use on the original’s value or marketability? If, for example, I write out the sheet music to a song, I am directly competing with the owner of the print rights to that song: Someone may not buy it from them if they can get it for free from me. Even if my use is educational, it is not “fair use.”

In all cases, with fair use, the name the copyright owner must be given and acknowledged. Fair use is NEVER fair if you don’t attribute the work. (In that case, it’s not fair use, it’s plagiarism.)

Fair use is an important concept: it acknowledges that society benefits from having access to information, and that if the creator is not harmed by the use, that there should be some way for others to quote from it in their own intellectual pursuits. Unfortunately, all of this is open to interpretation:  Courts have ruled differently in different cases, trying to apply a “reasonable person” standard. Of course, as we all know, when it comes to litigation there is nothing reasonable about it.