Must a work be &quot;essential&quot; for fair use to apply? In comments on this answer (now moved to chat) user supercat wrote: While there seems to be a belief that use of short clips is automatically fair use, a key requirement of fair use is that the reproduced material serve some legitimate purpose which could not be served without it. If one is doing a video about the way [a] landscape photographer balances light and shadow, showing one of his photos of Seattle would serve a purpose that could not be served by substituting a Creative Commons photo of that city. If, however, one is doing a video about Seattle, the CC photo would be a perfectly usable substitute, and thus use of the photo by a professional landscape photographer would not be subject to the same fair use protections. This claimed requirement that for a use of a work to constitute fair use in US law the work must serve some legitimate purpose &quot;which could not be served without it&quot; is not present in 17 USC 107. So if it is correct as a matter of law, it must be imposed via caselaw, that the the decisions of US Federa courts in copyright infringement cases where fair use has been raised as a defense. Is such a rule present in caselaw?
The claim seems novel, so I looked at several sources, including several recent cases where fair use has been upheld. Rozier In Easter Unlimited Inc v. Rozier, 18-CV-06637 (KAM) (E.D.N.Y. Sep. 27, 2021) the defendant arranged for creation of a cartoon image of himself wearing the copyrighted mask used in the movie Scream. This was found to be fair use, largely on the ground of the transformative nature of the use changing the purpose from evoking horror to a humorous reference to a horrifying movie. Rozier had originally considered using a representation of the hockey mask work by the character Jason in the Friday the 13th series of films. “Rozier and his management team decided that the clothing line would feature the name “Scary Terry, ” as well as a cartoon drawing of Rozier accompanied by a mask associated with a serial killer from popular horror.” Easter Unlimited, Inc. v. Rozier, 18-CV-06637 (KAM), 42 (E.D.N.Y. Sep. 27, 2021) at page 42 It would seem that the Jason mask would have satisfied the purpose as well as the &quot;Scream&quot; mask. Nothing in the fair use analysis (section C of the opinion, starting at page 31) refereed to a need (to establish fair use) for the work appropriated to serve a legitimate purpose which could not be served without it or any similar concept. This simply was not part of the fair use analysis. Further the opinion states, at page 17: “Copyright infringement is a strict liability offense, meaning “intent or knowledge is not an element of infringement.” Fitzgerald Publ'g. Co. v. Baylor Publ'g. Co., 807 F.2d 1110, 1113 (2d Cir. 1986). ” Easter Unlimited, Inc. v. Rozier, 18-CV-06637 (KAM), 17 (E.D.N.Y. Sep. 27, 2021) This seems to dispose of the de minims exception suggested by supercat's comments cited in the question. McGucken In McGucken v. Pub Ocean Ltd. 2:20-cv-01923-RGK-AS, 2021 U.S. Dist. LEXIS 153361 (C.D. Cal. July 27, 2021) The district court found fair use. The Copyright office's fair use index summarized the case, writing: Key Facts: Plaintiff Elliot McGucken photographs landscapes and seascapes, which he posts to his public Instagram account. Twelve of McGucken’s Instagram posts depict photographs he took of an ephemeral lake in Death Valley (the “Photographs”). On April 15, 2019, Defendant Pub Ocean Limited (“Pub Ocean”) published McGucken’s Photographs to five websites owned by Pub Ocean as part of an article written by a freelance writer titled “A Massive Lake Has Just Materialized in the Middle of One of the Hottest Places on Earth.” The article contained ten of the Photographs, with credit to McGucken and a link to his Instagram page, as well as several photos that were not McGucken’s and commentary on the conditions in Death Valley, the Sahara, and other natural phenomenon. McGucken brought an action for copyright infringement and moved for summary judgment, asserting Pub Ocean’s use did not constitute fair use. Issue: Whether including photographs posted on social media in a news article to illustrate the subject of the photograph is fair use when accompanied by commentary. Holding: The court concluded that Pub Ocean’s use of McGucken’s Photographs was fair use. The first factor, the purpose and character of the use, favored fair use because Pub Ocean’s use of the Photographs was transformative because the article included discussion of facts and commentary that provided context for the Photographs and included other photographs as well. The transformative nature of the use reduced the importance of the commercial purpose factor. The court held the second factor, the nature of the work, disfavored fair use as McGucken’s works, although previously published, are highly creative. The court found the third factor, the amount and substantiality of the work used, favored fair use. The court concluded that, despite displaying the “heart” of the Photographs, the article expressed ideas “beyond what Plaintiff expressed in his photographs,” rendering the amount of McGucken’s copyrighted images “insubstantial in context.” The fourth factor, the effect of the use upon the potential market for or value of the work, favored fair use because Pub Ocean’s transformative use “mut[ed] the degree of market substitution.” The court also noted that McGucken licensed the Photographs to other publications after Pub Ocean published its article, which indicated that Pub Ocean’s use did not usurp or destroy the market for the Photographs. Note that other photos of the same temporary lake would have fulfilled the legitimate purpose of news reporting, and there seems to have been no allegation that these particular images were essential to this purpose, but the court still found fair use. DMCA Subpoena to YouTube In In re DMCA Section 512(h) Subpoena to YouTube (Google, Inc.) United States District Court for the Southern District of New York January 18, 2022, Decided; January 18, 2022, Filed 7:18-mc-00268 (NSR) the district court considered a motion to quash a subpoena because a claimed infringement was alleged by the defendant to be fair use. In this case a person using a pseudonym created and posted to YouTube stop-action videos of characters represented by Lego constructions watching and reacting to substantial excerpts from a video published by the Watchtower Bible Society (publishing arm of the Jehovah's Witnesses). Watchtower claimed that this was copyright infringement, and obtained a subpoena to force YouTube to reveal the identity of the maker of the video. The unnamed maker sought to cancel (quash) the subpoena, claiming that the video made fair use of the videos published by Watchtower, so no infringement action could possibly succeed, and that Watchtower had no legitimate reason to obtain his identity, and wished only to harass and discredit him for having questioned its teachings. (The allegedly infringing video expresses disagreement with, and attempts to ridicule, the teachings expressed in the Watchtower video.) The district court found the allegedly infringing video to be fair use, and duly quashed the subpoena. Note that the unnamed maker could have used any of several other videos by Watchtower for a similar purpose, there was apparently noting unique to the particular video that was appropriated in part which was essential to the maker's use, nor did the court so much as mention any such unique aspect essential to the maker's purpose as being important to a finding of fair use. Excessive Use As this answer bv Accumulation correctly points out, when a defendant uses more of the sourc work than is required to fulfill the purpose of the use, that weighs against a finding of fair use. But this is not an absolute bar to fair use (or anything close to one), as the rule proposed by user supercat would be. In several cases I have read court opinions that say, in effect &quot;The defendant used more of the source work than was needed, adn that weighs against fair use, but the degree of transformativeness present outweighs that, so we find this to be a fair use.&quot; Thwe rule suggested by suoercat would not allow such findings. Excessive use leans against fair use, but is in no way dispositive. Conclusion I searched for any court case or law review paper which mentioned any such doctrine, and read through the fair use analysis in several recent court decisions in which fair use was found. I did not find any mention of the idea that fair use requires that the source work must be essential to the alleged infringer's legitimate purposes, and that those purposes could not be fulfilled by some other work, including perhaps a work available under a permissive license or in the public domain. I conclude that there is not, and never has been, any such requirement in US copyright law to successfully assert fair use.
It is still making a copy, and thus an infringement of copyright unless an exception, such as fair use or fair dealing, applies. But if in fact it is never distributed, the copyright owner will never hear of it, and thus will never sue. Remember that copyright infringement is, in all but a few extreme cases, a tort and not a crime. The basic law for the united-states is 17 USC 106. This grants to the copyright owner ... the exclusive rights to do and to authorize any of the following: to reproduce the copyrighted work in copies or phonorecords; subject to various limitations, particularly those in 17 USC 107 where [tag:fair_use] is defined, as much as it is in statute. However, in 37 CFR § 201.40 an exemption to the anti-circumvention provision has been declared by the Librarian of Congress has determined, pursuant to 17 U.S.C. 1201(a)(1)(C) and (D), that noninfringing uses by persons who are users of [certain] works are, or are likely to be, adversely affected. This includes Motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Content System, or via a digital transmission protected by a technological measure, and the person engaging in circumvention under paragraphs (b)(1)(i) and (b)(1)(ii)(A) and (B) of this section reasonably believes that non-circumventing alternatives are unable to produce the required level of high-quality content, or the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, where circumvention is undertaken solely in order to make use of short portions of the motion pictures It is not so clear that it includews entire films for personal use.
From the perspective of US law: Scenario 1: Removing the watermark is perfectly legal, obviously. You own the copyright. Scenario 2: Abandonware is not really a thing in the US when it comes to copyright (and the Wikipedia article you linked says this.) Even if the company went out of business, the copyright almost certainly went to somebody - the former owners, the creditors, etc. As far as the Internet Archive goes, they are taking advantage of an exemption in the DMCA's anti-circumvention provisions, along with the copyright exemption found in 17 USC § 108. But both of these exemptions require you to be a "library or archive" to take advantage of them, and you are not a library or archive, so you cannot take advantage of either. As a practical matter, if the software is really abandoned it's unlikely that anyone will actually come after you for infringement, but that's not quite the same as it being legal - you could be on the hook for up to $150,000 in statutory damages per work infringed, if the owner does sue you. You could attempt to claim fair use, of course. If the image is abandoned you might get a favorable result on factor 4 of the fair use test (the effect on the market for the original) since there's no market if nobody can find the owner. But it would depend on the other factors; that alone wouldn't get you fair use. Scenario 3: I'm not sure where you get the idea that downloading a copyrighted image to your desktop is somehow protected. It isn't automatically legal to save a copy of something just because it's on the Internet. And the existence of a watermark may indicate that someone wanted to prevent the file from being copied. The website containing the image will likely have terms of use, which may indicate whether or not you're allowed to make a copy. For example, Stack Exchange's TOS says in part: Subscriber may download or copy the Content, and other items displayed on the Network for download, for personal use, provided that Subscriber maintains all copyright and other notices contained in such Content.
Making and sharing and using subtitles for movies is not legal. It is copyright infringement. I paint this statement with a very broad brush. The movies are copyrighted (they are original and fixed in tangible form). (17 U.S. Code § 102(a)) 17 U.S. Code § 106(2) provides that the owner of copyright has the exclusive rights to prepare and to authorize to preparation of derivative works based upon the copyrighted work. 17 U.S. Code § 101 defines derivative work as a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.... So we have established that the copyright holder has exclusive rights to authorize translations, but this exclusive right is limited by fair use. 17 U.S. Code § 107 provides some examples of fair use: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research If these subtitle files are not used for a fair use purpose (the examples cited are examples only, not an exhaustive list) then translation is infringement. If the files are used for one of the fair use purposes then § 107 also gives us the factors to determine whether that particular use is fair use: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
The Organization Does Not Own the Copyright As you were clearly not an employee of the organization, and did not have a specific contract with them, this was not a &quot;work-made-for-hire&quot; (WFH). Therefore, the copyright initially belonged to the author, in this case the programmer, that is you. That being so, it would require a written document to transfer the copyright to another during your lifetime. In future there should be a written agreement in such a case, spelling out just what rights are to be retained by whom. It can save lots of trouble. The organization would have an implied license to use the software. The terms of this would be defined by the conduct of the parties, and might be a matter of dispute. Probably there would be a non-exclusive license without any fee or ending date. Probably there would be no license to distribute to others unless you explicitly grant one. Specific US Laws 17 USC 101 defines a WFH: A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. (emphasis added) 17 USC 201 provides that: (a) Initial Ownership. — Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work. (b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. ... (d) Transfer of Ownership.— (d) (1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession. (d) (2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title. 17 USC 204 provides that: (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.
My opinion is that the copying of a single API endpoint, "run" that takes a function as an argument is not infringement. I can think of several lines of argument that get to this same conclusion: Originality: It doesn't exhibit the modicum of creativity required by the originality test. (Feist) Short phrases doctrine: It is a short word or phrase, which both the copyright office (Copyright Office Circular, 37 CFR 202.1) and courts (e.g. Hutchins v. Zoll) have declared ineligible for copyright. Merger: The merger doctrine allows reuse of an expression if it is one of only a very few number of ways of expressing an idea. I can't think of many other ways to express a function intended to run a function other than with the verb "run". Scènes à faire: It is not infringement to use an expression if it has become standard, stock, or common in a particular setting. Naming a function "run" is common in the programming community. Any one of these alone would be enough to rule out copyright infringement by taking this individual component of Excel's API. Note: Whether merger and scènes à faire are part of the originality/copyrightability analysis or part of the infringement analysis is not uniform across circuits. For example, the 6th circuit considers both merger and scènes à faire part of the copyrightability analysis. But, the 2nd and 9th circuits treat them as part of the infringement analysis and in the 9th circuit, they are affirmative defenses.
No The general common law rule is that a lawsuit requires an actual dispute. This is a contrived dispute with no real-world relevance. With apparent (or even actual) authority to act on behalf of A, you assisted B with making copies. The moment you contrived this scheme and set it into motion, you consented on behalf of A to allow B to use the materials. It is like paying someone to slip and &quot;fall&quot; on your sidewalk so they can sue you. There is no actual dispute, and volunti fit non injuria.
You are in breach of Copyright. Plain and simple. Certain websites allow you to use the website content as long as a link is made, but the website must clearly state that. You may also use a tiny portion of the content if it falls under Fair Use, where "Fair Use" does not mean "I want to". The best thing to do is not to do it. You can't copy anybody's work without consent. If you're thinking about Google specifically then they offer multiple APIs so that you can use their content in a wide variety of ways.