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What, if any, non-statutory factors of fair use exist and are likely to be used as precedent in the future?

The four statutory factors are as follows:

  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.

(17 USC ยง 107)/p>

This list of factors is explicitly non-exhaustive, so there is the potential for "surprise" factors. However, any such factor that is not sui generis presumably has a precedent in post-1976 case law and an obvious application beyond the bounds of its specific case. What, if any, such non-statutory factors exist and are likely to be used as precedent in the future?

  1. Alan Thomas II

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Answer by dsalo

(IANAL, IANYL, TINLA.)

"Transformative use" seems to be one such not-entirely-statutory factor. That's what got search engines out of trouble for making thumbnail images (Kelly v ArribaSoft).

Another non-statutory factor is the emergence of fair-use guidelines for various sectors of cultural industry. This started with the Documentary Filmmakers' Statement of Best Practices in Fair Use, which succeeded so well at making formerly-uninsurable documentaries viable that quite a few others have popped up, including the recent Code of Best Practices for Fair Use in Academic and Research Libraries. Apparently judges give some weight to common fair-use practice, so codifying same can be (limitedly) protective.

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