17 U.S.C. § 107
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[1]
Recently Gawker had a run in with Sarah Palin over the Fair Use of 21 pages of her new book. Palin feels that by using her actual words and putting them in their correct context, Gawker made Sarah Palin look like an idiot.
Here is how she won this battle in court.
Gawker used the leaked pages to comment on her book, fulfilling the 1st part of fair use. The book was intended for a general audience, fulfilling #2. Gawker exposed her work to an audience that the publisher wasn’t targeting so if anything it might lead to a few more book sales, fulfilling #4.
That leaves #3: the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
The amount and substantiality of the portion used is in no way a set thing. Like revealing that at the end of Titanic the ship sank is more substantial than the stupid scene with Leo and Kate on the front of the ship.
So the only case Sarah Palin has for it not to be fair use is that the 21 pages of racist, idiotic ranting covered everything that a reader is expected to learn in the entire book.
So her lawyers must have convinced the judge that the 21 pages that Gawker posted, which made Sarah Palin look like an idiot, would leave the same impression on the reader as if they had read the whole book. That Sarah Palin is an idiot.
Based on this ruling I can safely put out a spoiler for the book: Sarah Palin is an idiot.
(I can’t wait to see how many people will find this site by googling, “Sarah Palin is an idiot”)
By Darrell B. Nelson author of Invasive Thoughts
