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Use for commercial purposes weighs heavily against a finding of fair use (the legal test is whether "the user stands to profit from exploitation of the copyrigh

Use for commercial purposes weighs heavily against a finding of fair use (the legal test is whether "the user stands to profit from exploitation of the copyrighted material without paying the customary price"). Mere replication without substantial transformation of the work also weighs against fair use. So does use of the most or all of the whole copyrighted work as opposed to a small part of it (each photograph in a collection is usually the "whole work" for this purpose). The Seventh Circuit also recently stated that fair use is not meant to protect "lazy appropriators" who could have easily found an alternative. This is the natural outcome of the four factors specified in the law, but is not helpful to infringers as an explicit precedent. Source: I am a law student who just did a ton of research on Fair Use law. Edit: In response to wyldfire, the two big Supreme Court cases in the area are Campbell and Harper & Row. The Seventh Circuit case I referred to is Kienitz v. Sconnie Nation.

wyldfire 9y ago
Thanks for providing the details. What are the relevant decisions?
cabaalis 9y ago
Is the availability of fair use limited when the creator explicitly states that the product is only available for licensed uses?
- marcoperaza 9y ago
  My intuition is that it doesn’t matter, since that is basically the core function of copyright. No need to explicitly state it. You don’t even need to mark the work as copyrighted, since all works benefit from copyright automatically. On the other hand, the explicit, implicit, or expected refusal of the owner to license it for certain purpose weighs in favor of fair use. This is because of the fourth statutory factor, the effect on the market for the original. It’s harder for the owner to argue that you are depriving them of a market if they refuse to serve that market. It can go the other way though if the owner can show that the use will nevertheless affect demand for the work in the markets the owner does want to enter. The expected inability to get licensing is also one of the reasons for parody, and satire to a lesser extent[1], enjoying a presumption of fair use. Owners are unlikely to license someone to mock their work, but there is a fundamental free speech interest in allowing such mockery and commentary. [1] Parody is primarily commentary on the original work, while satire is using the original for commentary on other issues.

wyldfire 9y ago

Thanks for providing the details. What are the relevant decisions?

cabaalis 9y ago

Is the availability of fair use limited when the creator explicitly states that the product is only available for licensed uses?

marcoperaza 9y ago
My intuition is that it doesn’t matter, since that is basically the core function of copyright. No need to explicitly state it. You don’t even need to mark the work as copyrighted, since all works benefit from copyright automatically. On the other hand, the explicit, implicit, or expected refusal of the owner to license it for certain purpose weighs in favor of fair use. This is because of the fourth statutory factor, the effect on the market for the original. It’s harder for the owner to argue that you are depriving them of a market if they refuse to serve that market. It can go the other way though if the owner can show that the use will nevertheless affect demand for the work in the markets the owner does want to enter. The expected inability to get licensing is also one of the reasons for parody, and satire to a lesser extent[1], enjoying a presumption of fair use. Owners are unlikely to license someone to mock their work, but there is a fundamental free speech interest in allowing such mockery and commentary. [1] Parody is primarily commentary on the original work, while satire is using the original for commentary on other issues.