Boulder City Magazine® September 2008 Issue
by Rodney S. Woodbury, Esq.
Woodbury, Morris & Brown
"It's My CD" - Isn't All Use Fair Use?
In today’s technological world, it has become not only possible, but also relatively effortless, for consumers to copy, download, and otherwise distribute movies, music, and other works of art available on digital media. But what, if any of this, is legal?
Boulder City Magazine®
|Most works available on digital media today are copyrighted, which means that the copyright holder’s permission usually must be obtained before the work may be reproduced, performed or displayed publicly, or transmitted. Nevertheless, the Fair Use Act carves out certain limited circumstances in which a copyrighted work may legally be used in a manner that would otherwise be illegal.
Most people have heard of the Fair Use Act, though there are many myths and misconceptions as to what constitutes “Fair Use.” In reality, there is no cut-and-dried definition of Fair Use. Instead, courts typically use a four-factor test to make that determination. Courts consider:
(1) The purpose and character of the use;
(2) The nature of the copyrighted work;
(3) The amount and proportion of the copyrighted work being used; and
(4)The effect upon the value of the copyrighted work.
Often, the way in which courts will determine Fair Use cases is predictable. For example, if the purpose in using a copyrighted work is academic in nature, its user is not profiting financially from its use, and only a small portion of the original work is used, its use will likely be deemed Fair Use. However, courts balance all four factors before making a decision, so having only one factor in your favor probably is not enough.
Generally, copying music and movies for entertainment, even if no money is exchanged, is not considered Fair Use. You may own the CD, DVD, or other medium on which the artistic work is recorded, but usually you do not own the unrestricted right to use it. Never reproduce or use digital media unless you are certain that doing so is legal. To be sure, consult a qualified attorney.
Rod Woodbury can be reached at 933-0777 or by e-mail at firstname.lastname@example.org.
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