Chapter 1: Copyright

*Important acronym DAPPeR  Distribute, Adapt, Perform, Publicly display, Reproduce*

Copyright is a form of property ownership—it gives authors the right to control and profit
from the use of their work. Copyright owners’ exclusive rights include the right to reproduce,
right to distribute, right to adapt, right to publicly perform, and the right to publicly display a
copyrighted work. Real property protects land or buildings and homes built on land. Personal
property includes everything owned other than real property. Copyright is a form of personal
property. Tangible property includes property that individuals can see, touch, sometimes taste,
smell, or hear. In contrast, individuals cannot possess intangible property, but can have the right
to use it and control its use—copyright is a form of intangible property. Challenges to protecting
intangible property include possession of a physical object embodying a copyrighted work as
separate from ownership of the copyrighted work, and copyright infringement.
Copyright law exists to provide a set of rules to govern the ownership and control of
certain intangible creative works, give authors the right to decide whether or not to make works
available, and give authors the ability to control the way their work is used. In addition,
copyright law protects economic interests—the recording process represents a substantial
economic and artistic investment, and authors rely on the hope that potential revenues for their
work will repay their investment and allow them to make a profit. The author’s right philosophy
(natural right philosophy) extends copyright protection automatically and suggests authors are
morally entitled to control and exploit the products of their intellect. The utilitarian philosophy
(“user’s right” or “rights balancing”) encourages the widest possible production and availability
of artistic works by giving authors property rights that provide financial incentives to produce
and distribute creative works. According to the text, copyright is a limited monopoly for a
specified duration of time. Limited copyright duration gives authors a chance to financially
benefit from their property to collect the cost of their investments and earn profits, which
encourages the creation and dissemination of new works. Comparatively, cultural esteem rather
than financial gain incentivized creation of artistic works in traditional non-western countries.
Historically, US copyright law derived from a user’s right philosophy; however, an
economic rights philosophy better describes US copyright law. Copyright is important to the
music industry because the US economy has evolved from an industrial age to a post-industrial
information age, and in the information age, intellectual property is more important than any
physical commodities. Intellectual property is important in the US economy because the US is
the world’s largest producer and exporter of intellectual property, copyrighted works have
become a larger part of international trade, and copyrighted works represent a significant
exception to the US’s unfavorable trade balance—the US has a surplus trade balance with every
country in the world for copyrighted works. Other types of intellectual property include patents,
trademarks, and trade secrets.
 Chapter 2: Copyright History

Johannes Gutenberg’s invention of the printing press in 1436 allowed cheap production
of written works and led to the creation of copyright law. During the 17th century, printers and
distributors monopolized creative work. With the cooperation of printers and distributors, the
English Crown passed the licensing act to prevent religious heresy and political dissent, and
required authors to obtain licenses in order to publish written works. The Statute of Anne was
different from the licensing act because it transferred ownership of artistic works from publishers
and booksellers to the authors, and encouraged authors to create new works with incentives
through the creation of copyright laws. The Statute of Anne granted copyright holders protection
for a 14-year term, and an additional 14-year term if the author was still alive. In addition, if the
author sold their work to a publisher, after the 14-year copyright term expired ownership
transferred back to the author for the second 14-year term.
The US Copyright Clause promotes the creation and dissemination of creative works to
the public. Originally, Congress added the Copyright clause to the US constitution because
twelve of the thirteen colonial states had their own copyright laws—creating problems with
consistency. The 1790-Copyright Act provided copyright protection for books, maps, and charts
for 14 years with a renewal term of 14 years. The 1831-Copyright Act extended the initial term
of copyright protection to 28 years, allowed the renewal right to pass to the author’s widow or
children if the author was not alive at the end of the initial term, and included musical
compositions as a class of copyrightable material (though not public performance). The 1909-
Copyright Act expanded copyright protection to all writings of an author—interpreted loosely to
include most artistic works. The 1909-Copyright Act extended federal copyright protection to 56
years for published works while Common Law protected unpublished work indefinitely. The
1909-Copyright Act also created a mandatory mechanical license provision to reproduce and
distribute sound recordings of musical compositions. The 1976-Copyright Act automatically
granted copyright protection upon creation of work, and expanded copyright protection to
include musical works and sound recordings. In addition, the 1976-Copyright Act allowed
copyright owners to transfer partial ownership, extended copyright protection for unpublished
work to life of the author plus 50 years, established a termination provision for published works
in the last 39 years of the renewal period, established the fair use doctrine, and increased
mechanical royalty rates.
The international market for copyrighted works gave rise to the Berne Convention. Under
the Berne Convention, each member country agreed to give foreign works the same degree of
protection as its law provided for domestic works.
 Chapter 8: Copyright Duration

Laws granting copyright protection forever are unconstitutional. Contracts can limit the
term of copyright protection. However, if a copyright contract does not specify a duration term,
the copyright is valid for the remainder of the copyright term—subject to the author’s
termination rights.
From 1909-1978, Common Law protected unpublished work and the 1909-Copyright Act
protected published work. The initial term for published work, under the 1909-Copyright Act,
was 28 years with a renewal term of 28 years—maximum term 56 years—if the author renewed
during the last year of the initial term. Common Law copyright still protects two categories of
works: (1) works not fixed in a tangible medium and (2) sound recordings fixed before February
15, 1972—protected until February 15, 2067. However, the 1976-Copyright Act now governs all
other 1909-1978 works. The 1976-Copyright Act extended the renewal term for works published
before 1978 to 47 years—maximum 75 years. The 1992-Copyright Renewal Act gave automatic
67-year renewals for work created between 1964-1977, and allowed authors to regain ownership
in the last 39 years of the renewal term by terminating transfers for work created before 1978.
The 1998-Sonny Bono Term Extension Act further extended the renewal term to 67 years—
maximum term of 95 years. In addition, the 1976-Copyright Act currently protects unpublished
work created before 1978 for life of the author plus 70 years or until December 31, 2002,
whichever expires later.
For work created between 1978-present, the 1976-Copyright Act determines duration
based on creation, not publication, and life of the last surviving author plus 70 years—Congress
eliminated the renewal term for work created after 1978. However, copyright duration of
anonymous, pseudonymous, and 'For Hire' works is 95 years from first publication or 120 years
from creation, whichever expires first—duration is not determined based on the life of the
author.
The Register of Copyrights records author deaths and users can obtain certified reports
from the Copyright Office verifying a work is in the public domain. To determine if a work is in
the public domain, figure out when the author first published the work. To determine if a work
published before 1964 is in the public domain, after having found out when the author first
published the work, figure out if there is a renewal registration filed for the work by searching
the Copyright Office records.
The US is a member country of the Berne Convention, which has a minimum term of life
of the author plus 50 years. Furthermore, international copyright standards often provide for the
rule of the shorter term—allowing countries with long copyright durations (more copyright
protection) to apply short copyright durations (less copyright protection) to foreign works with
the foreign work’s duration term. However, countries that follow the ‘shorter-term’ rule usually
make exceptions for the US through treaties and agreements. In 1996, the General Agreement on
Trade and Tariffs (GATT) automatically restored expired foreign copyright protection until 2045
given three conditions. The first condition required authorship originating from a member
country of the Berne Convention, a member country of the World Trade Organization, or a
member country of another copyright treaty. The second condition required US publication no
sooner that 30 days after original publication in a foreign member country. The third condition
required existing copyright protection for a work in its foreign country of origin.
 Chapter 3: Copyrightable Work

The two most important copyright categories in the music industry are musical works and
sound recordings. In musical works with music and lyrics, copyright protects the combination of
music and lyrics, the music alone, and the lyrics alone.
Musical works and sound recordings must meet originality, expression, and fixation
requirements. Originality is independent creation (not copying), and requires a minimal amount
of creativity (however, courts usually assume creativity for music works). Expression is the
combination of elements in a work (not each individual idea). The expression requirement
prevents copyright ownership of individual words or notes; therefore, people cannot claim
copyright ownership of short and simple phrases (lyrics), although what constitutes “short and
simple” is not finite. Most courts determine expression in a work by evaluating melody and
harmony. Melody is the combination of musical notes (rhythm), pitch, and their arrangement—
and is usually the most recognizable element. Harmony is the structure, progression, and relation
of chords (structured around the melody) and usually is not copyrightable independent of an
entire musical work. Copyright law requires fixation in a copy or phonorecord, i.e., a tangible
form that is sufficiently permanent for perception or reproduction. Though sound recordings are
different from musical works (and performances), authors fix both the sound recording and the
musical composition in the same physical object, a phonorecord. Sound recordings must contain
originality and expression—the contributions of the recording artist and the record producer.
Copyrightable elements in sound recordings include the way a musical composition is sung by a
vocalist, played by musicians, arranged by a musical director or producer, mixed by a recording
engineer, and so on. Contractual provisions often determine copyright ownership in sound
recordings. The reproduction right in sound recordings is limited to the music record (i.e., the
reproduction right in sound recordings does not include the reproduction right of the musical
composition).
Copyright protects compilations—albums and works that overlap copyrightable
categories of work. To receive copyright protection, compilations are subject to the requirements
of originality, expression, and fixation. Since authors use preexisting material to create
compilations, selection, arrangement, and coordination (that is not mechanical grouping, i.e.,
alphabetical or chronological) of preexisting material contribute to the compilation's originality
and expression.
Copyright does not protect public domain work, ideas, facts, names, titles, slogans, short
phrases, unfixed works, and works created by the US federal government. However, state
governments can own work created by their employees, and the US can own work transferred to
the federal government.
 Chapter 4: Copyright Ownership

The author of a work is the initial owner of the copyright, and copyright ownership arises
upon creation of a work. The two categories of ‘for hire’ works include works made by an
employee as part of the employee’s employment, and certain types of works that are specially
ordered or commissioned.
One or more people can own a copyright and can transfer a copyright from one owner to
another. Joint ownership is work prepared by two or more authors with the intention to merge
their contributions into inseparable or interdependent parts of a whole. Inseparable contributions
have little or no independent meaning standing alone, and interdependent contributions have
some significant meaning alone but achieve their primary significance because of their combined
effect (i.e. music and lyrics of a song would be interdependent). Joint ownership might occur in a
song written by five band members or a song written by artist and then pitched to a producer that
insists on partial ownership in return. Joint ownership requires all authors to contribute to the
creation of the work, and have the intention to combine their contributions into a single work at
the time of creation. To determine if a joint work exists, courts will examine the conduct of the
contributors and any statements they may have made indicating their intent, the quality of the
contribution, the quantity of the contribution, and the copyright registration. In lieu of a contract
provision stating otherwise, joint authors will receive an equal share of ownership (i.e. two
writers 50/50). A joint owner cannot grant an exclusive license because that would prevent co-
owners from granting licenses. Each co-owner is entitled to an equal share of any income
generated be a jointly owned work and co-owners have a duty to account for profits from
licensing to third parties.
The most common types of copyright transfers include assignments and exclusive
licenses. An assignment occurs when a copyright owner transfers all or part of its ownership
interest in a copyrighted work. An exclusive license transfers the distribution right, adaptation
right, performance right, public display right, or reproduction right. A nonexclusive license gives
someone the right to exercise one or more of the copyright owner’s rights but does not restrict
the copyright owner from letting others exercise the same right—does not involve a transfer of
ownership. Divisible means authors can divide copyrights without restriction. The writing
requirement requires authors to put copyright ownership transfers in writing.
The termination right arose because of the unequal bargaining position of authors. An
author or the author’s successors can exercise the termination right in the last 39 years of the
renewal period. Copyright owners can exercise the termination right any time during a five-year
period between 35 and 40 years after the date of transfer, and then reassign rights to a new
transferee. The derivative work exception provides for continued use of derivative works made
before termination but does not allow a transferee to make any derivative works after
termination.
Sound recordings must contain originality and expression from the contributions of
recording artists and record producers. Copyrightable elements in sound recordings include the
way a musical composition is sung by a vocalist, played by musicians, arranged by a musical
director or producer, mixed by a recording engineer, and so on. Contractual provisions often
determine copyright ownership in sound recordings. The reproduction right in sound recordings
is limited to the music record (i.e., the reproduction right in sound recordings does not include
the reproduction right of the musical composition).
 Chapter 5: The Reproduction Right

A copyright’s exclusive rights include distribution, adaptation, performance, public

display, and reproduction. Exclusive rights are not absolute and are subject to various
exemptions, compulsory licenses, and defenses. A license is permission to use a copyrighted
work in a specified manner. A compulsory mechanical license (reproduction license) is
permission to reproduce and distribute copyrighted musical work in recordings (compact discs
and cassettes) for a royalty fee. A performing license is permission to perform a copyrighted
musical work in return for a royalty fee. A print license is permission to reproduce and distribute
copyrighted musical work in printed form (sheet music) for a royalty fee. A distribution license
is permission to distribute copyrighted musical work or sound recordings for a distribution fee.
The reproduction right is the exclusive right to make copies (copies and phonorecords).
The dubbing limitation maintains that the reproduction right in a sound recording extends only to
works that directly or indirectly recapture the actual sounds fixed in the recording. Third parties
can lawfully reproduce a copyrighted work by obtaining a license. The copyright owner has
absolute control over the first recording of a song. However, the compulsory mechanical license
allows third parties to record and make copies of the copyright holders work without their
permission for private use if the author already released the work to the public. The arrangement
privilege allows someone with a compulsory mechanical license to conform the work to the style
or manner of interpretation to the new performance, but cannot change the work’s melody or
fundamental character—if a major change occurs it would become a derivative work and would
require a negotiated license. To obtain compulsory mechanical licenses, individuals must file a
notice of intention to obtain a compulsory license with the copyright owner no later than 30 days
after recording and distributing the work. If the copyright owner is unknown, a person can file
the notice with the Copyright Office. Under the compulsory mechanical license provision,
individuals pay the statutory mechanical royalty rate for each record made and distributed to the
copyright owners on the 20th of each month—statutory rates for permanent digital downloads are
the same as CDs.
The audio home recording act was an act that allowed consumers to copy recordings for
private non-commercial use (burning a CD of already purchased music to a personal computer
okay because noncommercial; burning a CD of a friends favorite band not okay because
commercial, i.e., displaces a sale). Compared to earlier recordable technology, digital audio
recording was a problem because it allowed consumers to make nearly perfect copies, which
posed a more serious threat to the music industry. The audio home recording act required digital
audiotape manufacturers to use technology that prevented serial copying and exempted
computers. Furthermore, the audio home recording act required manufacturers and distributors of
digital audio recorders to pay royalties on sales to the Copyright Office—Copyright Office then
distributed based on record sales and radio airplay.
Sampling uses part of an existing work to create a new work and requires a negotiated
license. Courts do not agree about whether de minimus (a small amount) constitutes
infringement. Sampling does not prevent someone from replicating a sound from a previous
recording that is an unprotected element of copyright expression.
 Chapter 6: Adaptation and Distribution Rights

A copyright owner has the exclusive right to adaptation; therefore, copyright owners have
exclusive rights to derivative works. The requirements for derivative work require borrowing
from another work while transforming, recasting, or adapting the original work. Authors of
derivative (adapted) works receive copyright protection only for original contributions. Original
contributions in derivative works must be transformative—must be more than changes of
accompaniment and rhythm. A sound recording derivative is a remix (i.e., cutting and splicing).
A sound recording derivative takes apart sounds of a single recording and reassembles them to
create a new recording of the original. A sound recording derivative requires a negotiated license
from the copyright owner. Combining multiple sound recordings to create a single collage
recording is a derivative work called a mash-up. A mash-up requires a negotiated license from
the copyright owner.
The distribution right gives copyright owners exclusive rights to distribute a work. The
first sale doctrine is a limitation to the right of distribution. Once the copyright owner sells or
gives away a copy, they have no further right with respect to that copy—the consumer can re-sell
with respect to that particular copy.
 Chapter 7: Performance Right

The public performance right gives copyright owners the exclusive right to perform and
authorize others to perform their work. Public performances include live performances and
transmitted performances, e.g., streaming—does not include downloading because downloading
is a reproduction.
Restaurants pay PROs for the music they play because music contributes to the business'
atmosphere and increases profitability. To get paid for performances of music, songwriters and
publishers join PROs that monitor public performances through sampling and weighting
techniques—the PROs issue licenses and collect fees, monitor public performances of music, and
pay members (50% to each unless they have a written contract stating otherwise). US PROs
include ASCAP, BMI, and SESAC—authors use foreign PROs to collect royalties in other
countries.
The face-to-face teaching limitation exempts instructors and pupils from the performance
right—does not apply to for-profit universities, and only applies to online teaching instruction
under the Teach Act. Religious services are exempt from the performance right provided the
performance occurs during a worship service. Non-profits are exempt from the performance right
for live performances that donate admissions proceeds and do not compensate performers,
promoters, and organizers. The Fairness in Music Licensing Act covers businesses and
restaurants that meet three requirements—businesses and restaurants must be smaller than 2000
square feet, cannot retransmit a performance, and cannot charge admissions fees. Exemptions for
record stores apply to businesses that sell music and meet three requirements—businesses cannot
receive admissions, cannot transmit the performance beyond the store, and must perform the
records only to promote record sales.
Sound recordings and musical compositions do not have the same performance rights.
The ‘Digital Performance Right in Sound Recordings Act’ gives copyright owners of sound
recordings the exclusive right to perform by means of digital audio transmissions—applies to
digital performances transmitted beyond the user's location (does not include CDs playing at a
restaurant, live performances, or analog transmissions). To receive a compulsory mechanical
license, digital performances (transmissions) cannot displace record sales and, therefore, cannot
play a sound recording on demand, cannot give listeners advanced notice of the song being
played, cannot archive the program, and cannot loop the program. Interactive transmissions
(allowing listeners to choose what they listen to, e.g., Spotify) and transmissions that displace
record sales of digital performances require a negotiated license.
 Chapter 9: Copyright Formalities

The Copyright Office processes copyright registration applications. The Register of

copyrights, assigned by the Librarian of Congress, is responsible for the direction of the
Copyright Office. The divisions within the Copyright Office include the receipt analysis and
control division (receives copyright materials), the copyright registration program (examines
copyright registration apps), the info and records division, the copyright acquisitions division,
and the licensing division (compulsory licensing of distribution rights of digital audio recording
devices and reproduction rights).
The benefits of registration include: a public record, presumed evidence of ownership
(registering a work does not guarantee that someone is the owner of a work), ability to file
copyright infringement suits, entitlement to attorneys fees, ability to collect mechanical license
royalties, and the ability to block importation of illegal copies. Registration for a musical work
includes title info, author info, creation and publication dates, copyright claimant info (account
for ownership), previous registration, derivative work or compilation deposit account, and a
signature. Registration of a collection of works avoids the fees of registering each song
individually. To register a collection, the work must be unpublished, an individual entity must
own the entire collection, at least one author must have contributed to all the works, and the
collection must have a title (album name). Registering an album does not index individual songs
unless authors submit another form and pay an additional $100 fee. Supplementary copyright
registration is not required to reflect ownership changes, but is required to change previous
registration information. However, the Copyright Office does not settle copyright disputes
(particularly disputes of ownership). Pre-registering work is beneficial if an author needs
registration to proceed with infringement litigation. However, under the Artists’ Rights and Theft
Prevention Act of 2005, pre-registration is only permitted for motion pictures, sound recordings,
musical compositions, literary works being prepared for publication in book form, computer
programs (including videogames), and advertising or marketing photographs. In addition,
expedited registration is available for litigation purposes, meeting contractual or publishing
deadlines, and other urgent needs.
Section 407 of the 1976 Copyright Act mandates deposit for published works—the only
mandatory copyright formality. The law requires authors to deposit two copies of their work to
the Copyright Office within three months of publication in the US. Failing to deposit a published
work upon request could result in a fine up to $250 plus the retail price of the copies, or $2,500 if
the copyright owner continues to refuse the request. Works exempt from the deposit requirement
include works only published in electronic form, works only available online, works not
available in physical form, and some newspapers and periodicals.
Copyright notices often contain the word/abbreviation/symbol “copyright,” the year of
first publication or the year of creation, and the copyright owner’s name. In many situations,
there is more than one copyrighted work embodied on a phonorecord (i.e., the sound recording
itself, any underlying musical compositions, album cover artwork, and liner notes). In such
situations, separate copyright notices can help distinguish between the owners of the various
copyrighted works. The Berne Convention required the US to drop the notice requirement, but
some feel it is still advisable.
 Chapter 10—Copyright Infringement

(*Important acronym: DCIV: Direct, contributory, inducement, vicarious*)

Copyright infringement violates one or more of the copyright owner’s exclusive rights.
Improper appropriation involves copying an element protected by copyright. Copyright
infringers that do not make profits could be guilty of copyright infringement. In addition,
copying does not need to be intentional to constitute copyright infringement. Claimants
sometimes sue big artists over authorship (for infringement??) and, therefore, record companies
and music publishers wanting to avoid evidence of access are reluctant to hear material
submitted by new artists and songwriters.
To prevent copyright infringement, individuals use lawyers to send cease and desist
letters or send payment requests for unauthorized use. People often reconcile disputes with
settlement agreements because the agreements do not require admission of liability, are usually
confidential, and the damages recovered in litigation could be small. If a copyright owner, or
exclusive licensee, decides to proceed with litigation, they must file a copyright infringement
lawsuit in the federal district courts. State courts decide disputes involving copyright ownership
or the right to receive royalties (i.e., disputes that do not involve interpretation of the Copyright
Act).
To prove copyright infringement, plaintiffs must prove copying (with evidence of access
when the similarity is not ‘striking’ and evidence of substantial similarity) and prove ownership
if they did not register a copyright within five years of first publication. Direct evidence of
access could include the defendant’s admission of access or witness testimony of the defendant’s
access; circumstantial evidence of access shows the plaintiff’s work was well known or the
plaintiff’s work was available to the defendant. Evidence of substantial similarity involves the
ordinary observer test—evaluation of melodic, rhythmic, and harmonic similarities. Defendants
could counter the presumption of copying by weakening the plaintiff’s evidence of access (e.g.,
evidence of a company policy prohibiting unsolicited demos) or evidence of similarity (e.g.,
evidence the defendant created their work before the plaintiff created their work).
Joint and several liabilities hold all infringing parties liable for copyright infringement,
i.e., copyright owners can collect damages from all infringing parties. The four types of
copyright infringement include, direct, contributory, vicarious, and inducement—contributory,
vicarious, and inducement constitute secondary liability. Contributory copyright infringement
requires knowledge and substantial participation. Vicarious copyright infringement requires
financial benefit (direct and indirect) and ability to control copyright infringement. Inducement
(intent of copyright infringement rather than knowledge of copyright infringement) can
constitute copyright infringement but does not always constitute copyright infringement; in
addition, not all courts view inducement as a third category of secondary liability.
 Chapter 11—Defenses to Infringement

(*4 Factors for Fair Use*)

1. Purpose of new work
2. “Expression/ Transformation” in selected portion of old work
3. Copyrightabiliy of selected portion of old work
4. Effect on market

The statute of limitations on a copyright infringement claim is three years. Courts will
toll or delay the statute of limitations for equitable reasons when it would be unfair to apply the
statute of limitations to the particular case. A defense is a legal reason why the plaintiff’s claim is
not valid. Defenses to infringement include independent creation, fair use, and de minimis
copying (using an insubstantial or inconsequential amount of copyrighted work). Innocent intent
is not a defense to copyright infringement, but it can often limit the extent of liability for
infringement. Innocent intent occurs when an infringer believes a copyrighted work is in the
public domain, or when a music publisher, record company, or record distributor relies on a
songwriter’s promise that they wrote a song written by someone else.
Independent creation is a defense against copyright infringement because copyright
infringement requires copying. To prove independent creation in court, a defendant would need
to prove that any similarities were coincidental, or prove they created the work before the
plaintiff’s work (e.g., evidence of registration, witnesses who observed the defendant creating the
work, dated notes, or recordings evidencing independent creation).
The only way to know if something is fair use is if the copyright owner sues for
infringement and the court upholds the fair use doctrine. The ‘fair use’ balancing test examines
the social benefit the public derives from unauthorized use against the interest of the copyright
owner. To determine fair use the court must look at the purpose and character of the use, nature
of the copyrighted work, amount and substantiality of the portion used, and the effect of the use
upon the potential market for or value of the copyrighted work. Examples of fair use include
informational uses (criticism, comment, and news reporting) and educational uses (teaching,
scholarship, and research). To determine the purpose and character of the work the court looks at
the educational purpose, another socially valuable purpose, commercial purpose (can still
constitute fair use), noncommercial purpose, and nonprofit purpose. In addition, courts look at
incidental use (copyrighted work used as background in a different type of work that does not
compete with the copyrighted work), and good faith (although failure to obtain the copyright
owner’s permission to use copyrighted work does not constitute bad faith) when determining the
purpose and character of the work. When determining the nature of the copyrighted work the
court looks at the copyrighted work itself rather than the use made of the copyrighted work. To
determine the amount and substantiality of the portion used there are no absolute qualifications
for fair use, however, quality of the fair use matters even if the use is small. To determine the
effect of the use upon the potential market for or value of the copyrighted work, courts look at
how the defendant’s use will affect the value of the copyrighted work—unauthorized
downloading does not constitute fair use because it displaces record sales. According to the text,
courts often consider parody fair use because the infringer must use the copyrighted work in
order to criticize or make fun of the work.