Articles
1. What Is “Fair Use” of Copyrighted Material?
There are occasions when you can use copyrighted material without the permission of the owner of the copyright. Federal law has defined when this can be done, in what has been labeled the “fair use” doctrine.
If you can meet a certain test, then you can use the material without the owner’s okay – and these situations usually involve some type of scholarship use or critical review of the work itself.
Why? The U.S. Constitution (I.1.8) protects “the progress of science and useful Arts,” and the law balances this interest against “the degree in which the use may prejudice the sale, diminish the profits, or supersede the objects, of the original work.” Folsom v. Marsh, 9 F.Cas. 342, 348 (No. 4901) (CCD Mass. 1841).
The Fair Use Test
The test for using copyrighted material without the owner’s permission is a four-factor balancing test. If the owner complains to you about using their work, you will have to demonstrate that you pass this test - but that’s after the owner’s already proven that there has been copyright infringement.
- The Fair Use Test is outlined in the Copyright Act of 1976, 17 U.S.C. §107:
The purpose and character of the use, i.e., is it for educational purposes or is it being used in order to make money? - The nature of the copyrighted work: fiction is harder to meet fair use standards than nonfiction;
- amount and substantiality of the used portion, as compared to the copywrited work as a whole; and
- effect of the use upon the potential value of the copyrighted work.
That’s it. That is the Fair Use Test for Copywrited Work. Not that easy to apply in everyday life, is it?
After several years of court cases where judges wrote opinions giving their interpretation of what this language means, it is clear today that you can use excerpts of copyrighted works without the owner's approval if you are using them to teach, or for if you are using the excerpts to criticize the work itself.
If you are not teaching about the copyright work, and you’re not writing a critic’s review of it, then it’s best to seek legal counsel before you try and use the owner’s work without his permission.
For more information:
To discuss an intellectual property matter with a Castaneda lawyer, please call:
(213) 488-3341.
2. When Will You Know Your Customer Has Filed Bankruptcy? And What Should You Do?
In today’s economy, more and more business operations and individuals are being forced to make the hard decision to file bankruptcy in some form. Businesses, now considered “creditors” in the bankruptcy proceeding, may be blissfully unaware of their customer’s bankrupt status until they receive a notice in the mail from Clerk of the Bankruptcy Court.
The Clerk’s standardized notice will explain that immediately upon its receipt, the business (now “creditor”) must stop all collection activity with the customer (now, “debtor”). It doesn’t matter how much the customer may owe the business.
At this juncture, the business must recognize that its receivable is worth only a portion of its value before the bankruptcy was filed. It is prudent not to expect 100 cents on the dollar now.
The Automatic Stay
Federal law freezes everything until a court hearing can be held. This “automatic stay” stops the business from making any contact with the customer: there can be no telephone calls; no e-mail messages; no invoices; no past-due notices; no communications of any kind with the customer regardless of how large the amount is that is owed.
Within the notice, the Bankruptcy Court Clerk provides instructions on how to file a “proof of claim” with the bankruptcy court, as well as giving the deadline for this to be filed. The business must file a proof of claim (which will be subject to the bankruptcy judge’s approval) in order to be included in the court’s formal List of Creditors. If you are not on the list of creditors, then you will receive zero on your unpaid balance.
The proof of claim form is standardized and available online at the bankruptcy court’s website. Completing the form can be confusing, and gathering the needed backup documentation can be frustrating.
Getting Advice from Your Attorney
It is usually in the company’s best interests to check with its attorney before completing and filing any proof of claim form. It is also wise for the business to discuss with its lawyers whether or not to bother filing one. There are situations where it is better to stay out of the entire bankruptcy process, especially if the business has a claim that is not dischargeable under federal bankruptcy law.
To discuss a business law matter with a Castaneda lawyer, please call:
(213) 488-3341.