Is this fair use?
Let’s determine if this is fair use.
In order to guide judges in making determinations of fair use, the drafters of the Copyright Act included four factors:
- The purpose and character of the use, including whether it is for commercial use or for nonprofit educational purposes.
In evaluating the purpose and character of the use, courts favor non-profit educational uses over commercial ones. However, there are instances in which commercial uses would qualify as fair use and other instances where educational uses would not meet the criteria.
Courts also favor productive uses that yield a "transformational" result. Thus, extensive quoting from a work to produce a critical analysis of that work is favored over "slavish copying" that merely reproduces a copyrighted work. - The nature of the copyrighted work.
This factor focuses on the work itself. The legislative history states that there is a definite difference between reproducing a short news note and reproducing a full musical score because of the nature of the work. Moreover, some works, such as standardized tests and workbooks, will never qualify for fair use because by their nature they are meant to be consumed. Uses of factual works such as scientific articles are more likely to fall within fair use.
- The amount and substantiality of the portion used in relation to the copyright-protected work as a whole.
This factor considers how much of the copyrighted work was used in comparison to the original work as a whole. Generally, the larger the amount used, the less likely a court will find the use to be a fair use. Amount and substantiality is also a qualitative test; that is, even though one takes only a small portion of a work, it still may be too much if what is taken is the "heart of the work."
- The effect of the use on the potential market for or value of the copyright-protected work.
Courts use this factor to determine whether the use of a work is likely to result in an economic loss that the copyright holder is otherwise entitled to receive. It looks at whether the nature of the use competes with or diminishes the potential market for the use that the owner is already exploiting or can reasonably be expected soon to exploit. Even if the immediate loss is not substantial, courts have found that, should the loss become great if the practice were to become widespread, then this factor favors the copyright holder.
Point 1: The reason for posting the track plan is to critique it, so that's educational use, so that's okay. But commercial versus non-commercial is borderline. However, you have simply lifted the track plan straight from the publication, so that's a "slavish copy," which is frowned upon. MRH is a for profit business and we sell eyeballs to advertisers. If you take a competitors content and post it on MRH, you’re lifting another publishers work thats not free and posting it for free and allowing us to profit. That’s very iffy.
Our assessment: Borderline given that MRH profits from what is simply lifted content we did not produce.
Point 2: This is a factual work, so fair use could apply. However, track plans are commodities highly valued in the model railroading community and people even pay money to have a good one drawn for them. So a track plan could be argued to be more like a test and highly consumable, which the court says is not fair use.
Our assessment: Again borderline, lifting a highly valued model railroading consumable that people pay money for to get a good track plan makes this possibly not fair use.
Point 3: A track plan is likely the core of the article in which it appeared, thus the "heart of the article."
Our assessment: Almost certainly not fair use since you've lifted the core of the article and posted it for free.
Point 4: While Kalmbach isn't losing a lot of money in this one instance, if posting the track plan from track planning articles (the core of said articles) on the internet for free becomes widespread, this could cost Kalmbach significantly in revenue since modelers get a highly prized hobby commodity for free.
Our assessment: Almost certainly fails the "if this practice becomes widespread" test. Not fair use.
Our final assessment: If in doubt, get permission. In this case, two of the four points are iffy and two of the four points are almost certainly NOT fair use. In short, posting the core of a copyrighted track plan article on our for-profit forum where we sell eyeballs to advertisers fails the fair use test.
Get Kalmbach's permission and we will allow posting their copyrighted track plan.
Sorry for the rabbit hole on this thread, but the last thing we want is to make a fellow publisher mad and consider us borderline unethical.
