The week of January 13-18 is being used by a number of legal advocacy organizations in the United States as a week of action to speak out about potential changes to copyright law. The dates were chosen so that the week’s conclusion on Saturday the 18th coincides with the anniversary of the SOPA/PIPA blackout in which many organizations and companies, large and small, worked together to protest this misguided legislative proposal.
On each day this week, organizations will focus on a different aspect of copyright. Today we are focusing on Fair Use. The OTW was founded on the idea that fanworks are creative and transformative, and therefore are protected by Fair Use under US law. For that reason our Legal Advocacy project has been proactive in protecting and defending fanworks from commercial exploitation and legal challenge.
In the United States, Fair Use is a part of the Copyright Act, which lists four factors the courts can look to in determining whether a work is Fair Use; they include (1) the purpose and character of the use (commercial nature, educational purposes, etc.); (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. Courts have addressed these issues many times over the years, and many recent cases involving Fair Use have expanded the types of works that can take advantage of Fair Use protections. Only last year, the Southern District of New York found that Google Books’ database of complete scans of fiction and nonfiction books was a transformative work, and Fair Use, because it “advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.”
This holding is in line with the OTW’s longstanding view of transformative works and Fair Use, as our reading of U.S. law is that fan fiction and often other types of fanworks advance the progress of the arts (and sometimes sciences too), while respecting the rightsholders’ ownership and ability to make commercial use of their intellectual property. Fair Use principles permit fans to create a wide range of transformative works without first seeking permission from rightsholders–including fanfic, fanart, vids, games, cosplay, fan films, ballets and stage plays. Noncommercial transformative works are generally permitted by Fair Use, but a lot of works within the Fair Use sphere are not also defined as transformative works.
The OTW’s various projects all feature the amazing works that can be created and shared under the umbrella of Fair Use, whether remembered in Fanlore, preserved by Open Doors, archived on the AO3, explored in Transformative Works and Cultures, or featured in our Test Suite of Fair Use Vids.
Copyright Week is an important event for discussing how these laws and regulations impact citizens, but it’s also an important opportunity for you to make your voice heard. You can help by:
1) Visiting the Copyright Week site and signing on to endorse the principles being expressed by the OTW and other organizations.
2) On that page you will find links to posts made by other groups that support a larger public domain, broader fair use, and open access. You can support the OTW or other groups working on your behalf.
3) Retweeting, reblogging, or linking to posts about the issues being discussed during Copyright Week.