Can I Borrow A Bit of Digital?

By Marie D'Amico

More than one million people bungee jump into the hurly-burly digital world of the Internet each month and create a World-Wide Web page. Perhaps you're one such stalwart soul. Like everyone else, you want your WWW personal page to contain all your prized pieces of pop culture. The first paragraph of J.R.R. Tolkien's cult classic, The Lord of the Rings. The theme to The Mod Squad . The cover of the seminal Tijuana Brass vinyl, Whipped Creme . An animated startup segment from The Simpsons . And, a snapshot of a sculpture of Snoopy you made in junior high school. Can you legally digitize your treasures of kitsch and display them on your WWW knickknack shelf?

The Copyright Statute is clear. If you adapt , copy, distribute a copy, prepare a derivative wor k, display , record, or publish another's copyrighted work, you can be branded a copyright infringer . In my example, if you digitize and display your worshipped keepsakes, without permission, you have infringed each owner's copyright by multiple methods. You not only have illegally copied his artistic creation but also you have illicitly displayed, distributed, and published it on the WWW. Luckily for conscientious consumers, the doctrine of fair use can be a complete defense to a charge of copyright infringement. If your purpose can be classified as criticism, news reporting, research, or teaching and if you pass the four-part fair use test, you can copy those copyrighted works and display them on your WWW curio cabinet.

CourtTV aficionados can attest that life in the law is rarely black and white. Courts have considered fair use defenses for over one hundred years, but they still analyze each situation on a case-by-case basis. They have, however, evolved a set of criteria, which aren't completely definitive or determinative, but provide some general guidance. These criteria can be reduced to four factors: (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. Courts will consider all criteria to see which way the scale tips. Let's evaluate these four factors as they apply to the artifacts on your WWW site.

If your WWW page is purely personal, you can likely satisfy the first factor in the fair use inquiry. Most WWW pages aren't so categorically clean. They usually contain commercial components designed to elicit business, such as resumes, descriptions of your wares and whereabouts, and places to purchase your products or services. Perhaps your products are targeted to appeal to sci-fi fantasy readers and advertisers so you took a bit of Tolkien. Maybe your jingle-writing brilliance is best embodied by that Mod Squad theme. Courts will smell a commercial nature in such uses. If you want to tip towards non-commercial, add a new meaning or message . Discuss why Tolkien was an elf-loving misanthrope. Describe the subliminal images on the Whipped Creme cover. Debate Groening's allusions in The Simpsons . Provide commentary or criticism and the first factor tilts towards fair use.

The second statutory factor, the nature of the copyrighted work, is the least important criterion. Artistic creations are considered closer to the core of copyright protection and for these works, courts will apply a more stringent standard of fair use. Fictional short stories, movies, novels, plays, and unpublished memoirs are all considered creative expressions. For informational works, the courts will more readily find fair use . Almanacs, dictionaries, encyclopedias, guide books, legal, medical, scientific reference documents, and news broadcasts are all considered factual material. All the artifacts I proposed are popular icons which the courts will protect strongly so the second factor tilts towards unfair use. As a helpful hint, remember it's always better to borrow from Noah Webster than Walt Disney .

Contrary to urban legend, there is no formula for the third factor, the amount of a copyrighted work you may fairly copy. The less the better, but even itty-bitty borrowings can be unfair use if you steal the heart of the original creation. In 1991, the rapper Biz Markie sampled three words and some melody from Gilbert O'Sullivan's whiny hit, Alone Again (Naturally) for one song on an LP. The judge forbade further production of the entire album. A parody is perhaps the safest stealing because courts permit parodies to claim much of their victim's creation. The Supreme Court allowed 2 Live Crew to scathingly sample much of the melody and lyrics of Roy Orbison's classic Oh Pretty Woman for a rap parody. For your WWW site, the Tolkien and Simpsons snippets use little of the total text and time of their sources, tipping the third factor towards fair use. The album cover, television theme, and Snoopy sculpture are total takings and they tilt towards unfair use.

The fourth factor is the most important element of fair use. If you injure the market for the copyrighted work, the entire scale starts to slip towards unfair use. For example, the Supreme Court ruled printing parts of an unpublished memoir was not fair use because pre-publication would impair sales of the completed book. The Court permitted the 2 Live Crew Pretty Woman parody in part because the pop and rap music markets don't intersect. A court did not permit the artist Jeff Koons to make a sculpture from a famous photograph of a park bench of puppies because the sculpture undermined new uses of the picture. Your WWW page will likely not nick the market for your chosen bric-a-brac so the fourth factor leans towards fair use. If, however, your WWW site becomes so chic the digerati would rather download your Simpsons segment than tune to Fox TV, it's time to rethink your collection.

Tallying up the final four, if you supply critical commentary, the Simpsons and Tolkien tidbits may be fair use , but the album cover, theme title, and Snoopy sculpture may fall into unfair use. If you desperately want to digitize these works, you may be able to license such use from the copyright owners. Organizations such as the Copyright Clearance Center , the Copyright Holders DataBase , and the Motion Picture Licensing Corporation will assist you in licensing text, photos, and movies.

Of course, unless you make it onto HotWired' s list of wired Web sites, the concerned copyright owners will not likely locate your use of their creations. If they do ferret out your WWW page, and you lose your fair use defense play, a court might charge you no more than $200, if you're an innocent infringer. If both you and the judge are not so naive, you can be forced to fork over $100,000. It may not make the nightly news, but you can also be imprisoned for copyright infringement for up to a year. If you infringe a sound recording, in more than 30 states your crime will be classified as a felony. The judge who found Biz Markie's album copyright infringement also referred the matter onto the District Attorney for criminal prosecution. That LP is not only a collectible, it's criminal.

Copyright infringement is scary stuff. Before you willy-nilly start wielding your scanner, analyze each usage under the four-part fair use test. If the answer is fair, feel free to digitize and display your cherished collectibles on your WWW page. If the result tends towards unfair, however, calculate the degree of liability you're willing to risk to place that personal memento onto the WWW. Sometimes, keeping that pop icon on your wall at home is the next best thing to putting it on your WWW page.

Questions? Send me email .