Legal Question in Intellectual Property in Kansas

Re: Copyright and News Competitors

EXCELLENT question.

Fair use is a real sticky wicket. The problem is that the final determination of whether use is fair or not rests with the individual judge.

The statute states:

Notwithstanding the provisions [enumerating exclusive rights], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in [the statute], for purposes such as:

Criticism; Comment; News reporting; Teaching (including multiple copies for classroom use); Scholarship; or Research is not an infringement of copyright.

17 USCA §107

New reporting is one of the enumerated fair uses of copyrighted material, but the statute goes on to state:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: The purpose and character of the use, including whether such use is of a commercial nature or for nonprofit educational purposes; The nature of the copyrighted work; The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and The effect of the use upon the potential market for or value of the copyrighted work.

17 USCA §107

Caselaw tells us that the courts must look at four fair use factors:

First Factor: What’s the Use?

Is the use commercial?

Who does the copying?

School —> Educational Use: leans toward fair use

Commercial entity —> Commercial Use: leans toward infringement

Does the copying go to the heart of the fair-use preamble (I.e., is it for a purpose such as criticism, comment, or parody)?

Yes: leans toward fair use

No: leans toward infringement

Is the use Transformative?

Has the supposed infringer added something new to the copyrighted work?

Leans toward fair use

Or has the supposed infringer merely superseded or created another version of what is already there?

Leans toward infringement

Will the copyright holder be in the derivative market?

Yes

leans toward infringement

No

leans toward fair use

That's just the first caselaw factor; the other three are just as convoluted, if not more so.

You need to discuss your question with a copyright attorney. Please call my office if I can be of service to you.

Re: Copyright and News Competitors

Short answer is that you would probably be safe if you do cite the course of the competitor's copy and you don't include too much of their copy. Even safer is to put just 6 or so lines of their copy with a link to the page you got the copy from. Let me know if you want assistance with this.