From Dr. Seuss Enterprises
v. Penguin Books USA Inc., 109 F.3d 1394, 42
U.S.P.Q.2d 1184, 97 Cal. Daily Op. Serv. 2215 (9th Cir. 03/27/1997):
:
"In S 107 of the 1976
Copyright Act, Congress laid down four factors to be considered
and weighed by the courts in determining if a fair use defense
exists in a given case: (1) the purpose and character of
the accused use; (2) the nature of the copyrighted work; (3)
the importance of the portion used in relation to the copyrighted
work as a
whole; and (4) the effect of the accused use on the potential
market for or value of the copyrighted work. 17 U.S.C. S 107.
"Congress viewed these four criteria as guidelines for "balancing the equities," not as "definitive or determinative" tests. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 65 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5679. Congress observed that "since the doctrine [of fair use] is an equitable rule of reason, no generally applicable definition is possible." Id. The four fair use factors "are to be . . . weighed together, in light of the objectives of copyright `to promote the progress of science and the useful arts.' " Id.
"The first factor in a fair use inquiry is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." S 107(1). While this inquiry does not specify which purpose might render a given use "fair," the preamble to S 107 provides an illustrative, though not limitative, listing which includes "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." S 107. [N.B. The implication here is that non-commercial use of Course material--as in teaching--is more likely to be within the "fair use" defense than a commercial use, such as a for profit publication, would be.]
"The second statutory
factor,"the nature of the copyrighted work," S 107(2),
recognizes that creative works are "closer to the core of
intended copyright
protection" than informational and functional works, "with
the consequence that fair use is more difficult to establish
when the former works are copied." Acuff-Rose, 114 S. Ct.
at 1175. * * * [N.B. The fact that the Course is the channelled
word of Jesus tends to eliminate any creativity on the part of
the the scribes of the material, which tends toward broadening
the fair use of the material.]
"The third factor asks
whether "the amount and substantiality of the portion used
in relation to the copyrighted work as a whole," S 107(3),
are reasonable in relation to the purpose of the copying. This
factor really raises the question of substantial similarity discussed
in the preceding section, rather than whether the use is
"fair." * * *
"The fourth fair use factor
is "the effect of the use upon the potential market for
or value of the copyrighted work." S 107(4). Under this
factor, we consider both the
extent of market harm caused by the publication and distribution
of [the material] and whether unrestricted and widespread dissemination
would hurt the
potential market for the original and derivatives of The Cat
in the Hat. The Second Circuit has characterized this factor
as calling for the striking of a balance "between the benefit
the public will derive if the use is permitted and the personal
gain the copyright owner will receive if the use is denied. The
less adverse effect that an alleged infringing use has on the
copyright owner's expectation of gain, the
less public benefit need be shown to justify the use." MCA,
Inc. v. Wilson, 677 F.2d 180, 183 (2d Cir. 1981) (citations omitted).