Figuring out the Fourth Factor

Copyright librarians discuss fair use case law

June 24, 2019

Carla Myers, coordinator of scholarly communications at Miami University in Ohio

Carla Myers, coordinator of scholarly communications at Miami University in Ohio, kicked off her session on copyright and fair use with a relatable question: “How many of you have had a patron ask, ‘How much of this book can I photocopy’?”

At “Show Me Money! Or Not?,” a June 23 panel at the American Library Association’s Annual Conference and Exhibition in Washington, D.C., speakers from academic institutions reviewed five examples of case law to dispel confusion around fair use, specifically focusing on the exception’s fourth factor.

“I think the reason fair use is the exception librarians are familiar with is because it’s the exception open to everybody,” said Myers. “Educational uses are highly, highly favored under the law.”

Fair use, as found in Section 107 of the US Copyright Act, refers to the unlicensed use of copyright-protected works in the instance of criticism, commentary, news reporting, teaching, scholarship, or research. The fourth factor of fair use refers to the effect of the use on the market for or value of the copyrighted work.

“As a copyright librarian, I get many questions about the fourth factor,” said Myers. The reason for this, she believes, is that institutions don’t want to get sued.

Panelists stated that they were not giving legal advice, but merely presenting past and ongoing court cases to illustrate the finer points of the fourth factor:

  • Yuan Li, scholarly communications librarian at Princeton University, covered American Geophysical Union v. Texaco (1994). The court found in favor of the publishers–not Texaco–because “a million dollar loss in revenue” was taken as evidence there was “substantial harm” to the market, said Li.
  • Tomas Lipinski, dean and professor at University of Wisconsin-Milwaukee School of Information Studies, spoke about Bill Graham Archives v. Dorling Kindersley (2006). “Those of you who are Grateful Dead fans might be familiar with this case,” said Lipinski. The court found that a publisher looking to make a coffee table book about the Grateful Dead could use unlicensed posters from the Bill Graham Archives because “unlike Texaco, the court concluded these were transformative uses of the posters. [There was a] totally different purpose here; these are historical artifacts,” said Lipinski. “Just because you tell me you’ve licensed these posters to some other poor schlep who paid for it, doesn’t mean it’s a threat to the market.”
  • Kathleen DiLaurenti, head librarian at the Arthur Friedman Library at the Peabody Institute of John Hopkins University, discussed Estate of James Oscar Smith v. Cash Money Records (2017). “Sampling can be fair use in music,” she said. The case involved hip-hop artist Drake sampling musician Jimmy Smith, but because Drake “dismissed Jimmy Smith’s dismissal of all non-jazz,” said DiLaurenti, the court ruled that the use was transformative and, speaking to the fourth factor, jazz and hip-hop listeners were different markets.
  • Laura Quilter, copyright and information policy librarian at University of Massachusetts Amherst, talked about Harper & Row v. The Nation (1985) and the ongoing Cambridge University Press v. Becker/Patton. In the former case, The Nation scooped Time Magazine on excerpts of Gerald Ford’s memoir, and the court determined that “unpublished words can’t be fair use,” ruling in favor of Harper & Row, said Quilter. “Scooping doesn’t create new works and it harms original creator.” In the latter example, three academic publishers sued Georgia State University over e-reserves, but the court determined that “e-reserves are not per se copyright infringement,” said Quilter. “This case is actually a super win for libraries,” she said, but the case is 11 years running.


left to right) Erin Stewart, Deborah Maroulis, Nikki Barthelmess, Sarah J. Carlson, C. H. Armstrong, James Brandon, Alexandra Villasante, and Laura Sibson

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