Fair Use

Collage artists, when first confronted with the sobering reality of copyright law, often seize on "fair use" as a way out. With muddy understanding of a muddy concept, the hopeful artist assumes that fair use will protect her if her work remains unpublished, if it is only published on the Internet, and/or if it not sold for a profit.

This is possibly the most common myth I have heard about copyright law as it applies to collage. Sadly, I must report that I have never found the slightest bit of evidence to suggest that the fair use doctrine protects collage.

What, exactly, is fair use? It is a doctrine, developed over decades of case law and eventually codified into US law, which defines certain uses of copyrighted material as "fair use", and protects such uses from legal action. Unfortunately, I use the term "define" rather loosely here. Nothing in US copyright law will tell you exactly what is and is not fair use. "Criticism, comment, news reporting, teaching, scholarship, and research" are given as the type of material protect by fair use in Publication fl102, which also provides the following examples:

Quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

While collage is never specifically mentioned as not qualifying for fair use, it seems clearly to not fall into the same category as the above examples. More damning evidence is the recent, very visible example of musical sampling in rap and electronic music. Numerous lawsuits have demonstrated repeatedly that musical sampling cannot be considered fair use. In my opinion, visual collage has much more in common with musical sampling than with the examples of fair use above.

The law establishes four factors to consider, when determining whether a use is fair or not:

  • the purpose and character of the use, including whether such use is of commercial nature or is 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.

Keep in mind that all four factors must be considered when determining whether a usage is fair use. For example, a non-profit, educational use of copyrighted material, which had a devastating effect on the copyright holder's ability to market their work, could not be considered fair use. (If you doubt me, try copying a DVD of your favorite Hollywood blockbuster and posting it to the Internet for free download -- for educational purposes only, of course!)

I have been told many times that collage can be considered fair use if only a small percentage (5%, 10%, etc) of the original work is used, and/or if original sources are credited. To this the Copyright Office says, "The distinction between "fair use" and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission."

Turning again to the example of musical sampling, many rap artists landed in court because they believed that 5 notes, no matter how recognizable, could be taken from existing recorded music and used in their new compositions. Now musicians get clearance on all samples, avoiding the costly mistakes of their predecessors.

I have heard theories that rap music is the reason why copyright is so much stricter in regards to collage these days. It makes sense to me: before, there wasn't much money involved in visual collage. But there is a lot of money involved in sound collage, therefore a lot of reasons for a lot of big lawsuits. However, this is pure speculation on my part.