copyright internet fair-use intellectual-property
Is it fair use to discuss a fictional work on a webpage?
<p>On my for-profit website, users can rate and comment on works of literature, film, and music, most of which are copyrighted. The only information I include is:</p>

<p>1.) Title</p>

<p>2.) Release date</p>

<p>3.) MPAA rating, if it is a movie</p>

<p>4.) Similar works</p>

<p>Does this count as fair use of the work?</p>

<p><a href="https://www.plagiarismtoday.com/2010/01/08/5-things-that-cant-be-copyrighted/" rel="nofollow">Titles can't be copyrighted</a>.</p>

<p>Meta-data like #2 aren't copyrighted.</p>

<p>Not sure if the MPAA <em>could</em> protect its ratings, but I can't find anywhere that it has asserted restrictions on the use of those.</p>

<p>If the list of "Similar works" is not somebody else's intellectual property then there's no problem.  (If it is I'm not certain what protection it could be eligible for.)</p>

<p>Your website is probably fair use.  In the 2013 case of Authors Guild, Inc. v. Google Inc., the court held that Google Books was permitted to scan books and provide snippets to the readers.<br>
The court found the following benefits of Google Books.
1. It provided new and efficient ways for readers to finds books.
2. It promotes research and data mining.
3. It gives access to books to underserved populations.
4. It helps to preserve books and it gives them new life. 
5. It helps to sell the books because the researcher is directed to a link where they can purchase the book. </p>

<p>Ultimately the court held Google Books is fair use because Google only used snippets of the book. The case. <a href="https://scholar.google.com/scholar_case?case=140462947356925233&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr" rel="nofollow">https://scholar.google.com/scholar_case?case=140462947356925233&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr</a></p>

<p>All courts do a case-by-case examination of the facts, using a “Four Factor test” to analyze whether the doctrine Fair Use applies in a given situation. </p>

<p>The four factors are stated in the opinion of the Joseph Story in <em>Folsom v. Marsh</em>, 9 F.Cas. 342 (1841) (widely cited &ndash; even in the most recent of cases). This case had to do with a guy (the defendant) who'd copied hundreds of pages from the plaintiff’s multiple-volume biography of George Washington, so as to produce a separate work of his own. (Most of what he copied are letters Washington wrote &ndash; so there is also the public right need to know analysis &ndash; but much of this was not original.)</p>

<p>If you want a book on the subject that cites a number of sources and discusses all of the law on copyright and fair use, <em>Infringement Nation: Copyright 2.0 and You</em>, by John Tehranian, is a good resource for people in your position as it cites many cases and scholarly articles as well as discussing the landscape of using copyrighted works in today's society.</p>

<p>Under this case, what became abundantly clear is that Fair Use is not a finite legal rule with a one-size-fits-all definition. It is also just an affirmative defense if you're ever sued under the theory of copyright infringement. To know if your site is a fair use, I'd objectively try to apply the test a court would. It sounds to me like you'd be fine, but only you know the intricacies of your site. </p>

<p><em>Folsom</em> is often touted as the landmark case that created safeguards of copyright law against <em>over-protection</em> and for maintaining the balance between private exclusion power and public "accessibility to information and knowledge."</p>

<blockquote>
  <p>Notwithstanding the provisions of...copyright laws....the fair use of
  a copyrighted work, including such use by reproduction...for purposes
  such as <strong>criticism, comment</strong>, news reporting, teaching ...is <strong>not</strong>
  an infringement of copyright.</p>
</blockquote>

<p>In determining whether the use made of a work in any particular case is a fair use the factors to be considered (now codified in 17 U.S. Code § 107) shall include:</p>

<ol>
<li><p>The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;</p></li>
<li><p>the nature of the copyrighted work;</p></li>
<li><p>the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and</p></li>
<li><p>the effect of the use upon the potential market for or value of the copyrighted work.</p></li>
</ol>

<p>See also:  </p>

<ul>
<li><a href="http://www.copyright.gov/title17/92chap1.html" rel="nofollow">http://www.copyright.gov/title17/92chap1.html</a></li>
<li><a href="http://www.law.cornell.edu/uscode/text/17/107" rel="nofollow">http://www.law.cornell.edu/uscode/text/17/107</a></li>
<li><a href="http://ogc.harvard.edu/pages/copyright-and-fair-use" rel="nofollow">http://ogc.harvard.edu/pages/copyright-and-fair-use</a></li>
</ul>

<p>This is not fair use because you <em>haven't even used anyone else's copyrighted materials</em>. Fair use is a defense again <em>prima facie</em> cases of infringement that the law nevertheless permits; however, in your case, you don't even come close to having a <em>prima facie</em> case of infringement. In copyright terms, your uses are already squeaky-clean before a fair use defense even needs to be considered.</p>

<ol>
<li><p>Title: The U.S. Copyright office has explicitly stated that <a href="http://copyright.gov/circs/circ34.pdf" rel="nofollow">titles are not eligible for copyright</a>.</p></li>
<li><p>Release date: Copyright only protects creative works. Historical factual information is not eligible for copyright. (Indeed, imagine the robust censorship possibilities if I could somehow enforce <em>copyright protection</em> on <em>public facts about myself</em>.)</p></li>
<li><p>MPAA rating: While the decision-making process that goes into assigning a rating probably requires a modicum of creativity, a single letter or two simply isn't eligible for copyright under any circumstances. Again, this appears to be a matter of historical fact, i.e., the MPAA historically did assign such-and-such rating to this movie. (The brief descriptions about why a rating is assigned, like "some violence" are likewise ineligible for copyright; the link above about titles also applies to short phrases.) If MPAA ratings were comprehensive documents that explained the rationale behind each rating, such a document would be protected by copyright, but a simple rating score is not.</p></li>
<li><p>Similar works: If <em>you</em> compiled the mapping of related works, this certainly can't be fair use because <em>you yourself</em> are the copyright holder! You certainly have no need to defend the use of your own work. This mapping is a "complilation" and is protected by copyright. From <a href="https://www.law.cornell.edu/uscode/text/17/101" rel="nofollow">17 U.S.C. §101</a>:</p>

<blockquote>
  <p>A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.</p>
</blockquote>

<p>As long as the complication was created using creative direction, it qualifies for copyright. This means, of course, that if you did <em>not</em> make this compilation yourself, you'd need permission from the author who did. It's very unlikely that using someone else's compilation in this wholesale, non-transformative way would be defensible under fair use.</p></li>
</ol>
