• A Washington, D.C. law firm that routinely made three copies of a weekly newsletter for distribution to attorneys in the firm was sued recently by the newsletter publisher for $14 million. The publisher of the newsletter is claiming "statutory damages" for copyright infringement. The law firm purchased one subscription of the newsletter at an annual cost of $675. It then allegedly made three copies of each issue that it distributed to firm members. The law firm is defending its actions on the basis of "fair use." The Copyright Act permits owners of copyrighted material to engage in the "fair use" of such material. However, the concept of fair use is a narrow one that should not be viewed as a form of blanket authorization to duplicate copyrighted materials. In determining whether a particular use of a copyrighted work is a "fair use," four factors are considered. First, what is the purpose and character of the use? Duplicating a work solely to avoid paying for it will seldom if ever be "fair use." Second, what is the nature of the copyrighted work? Some materials (such as dictionaries and encyclopedias) are in a sense made to be copied and quoted, and accordingly there is a broader privilege to copy these works. The nature of other works suggests a very narrow interpretation of fair use. For example, the House Report to the Copyright Act of 1976 states that "as a general principle it seems clear that the scope of the fair use doctrine should be considerably narrower in the case of newsletters than in that of either mass-circulation periodicals or scientific journals …. Copying … of even a small portion of a newsletter may have a significant impact on the commercial market." Third, what is the "amount and substantiality" of the portion copied? That is, how much of the copyrighted work is used? The greater the percentage of the copyrighted work that is copied, the less likely it is that the reproduction constitutes "fair use". One thing is clear—verbatim or nearly verbatim reproductions of an entire copyrighted work, such as a newsletter, will never be deemed a fair use. Fourth, what effect will the unauthorized use have upon the marketability of the copyrighted work? Note that the courts have ruled that this factor is not limited to an assessment of the impact of a single unauthorized use on the marketability of the copyrighted work. Rather, the courts may consider the likely impact should the particular unauthorized use "become widespread." There is little doubt that the law firm will fail in its effort to justify its unauthorized copying of the newsletter on the basis of "fair use." The implication of this case is clear—churches must be very cautious in duplicating any copyrighted materials. Before making copies, they must evaluate the availability of the fair use defense. If the availability of this defense is doubtful, then a church must either seek permission from the copyright owner, or purchase multiple copies.
