Monster Fair (use)

The EFF blog has an article about yet another fair use case, where a big corporations is successful at preventing individuals from using copyrighted materials as part, or as inspiration , of their own creations. In this case, a fan of of the British television show Doctor Who, who also happens to be talented knitter, created knitting patterns, allowing knitting amateurs to create a somewhat fuzzier version of the villain du jour. These patterns were posted free on Mazzmattaz, under a Creative Common License.

In the U.S., courts use four factors to decide whether the use of copyrighted material is fair or not. These four factors, provided by section 107 of the Copyright Act are the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the use of the copyrighted work, and the effect of the use upon the potential market. The defendant does not have to win on every four factors.

Here, the purpose of the use is to make one's voice heard in the knitting community, and to possibly inspire others knitters to create new patterns, encouraging people to knit, a rather wholesome activity. It certainly serves in that regard an educational role. The second factor is also in favor of the knitter, as the use of the copyrighted work is creative. Being able to engineer a toy requires knowledge and creativity. The third factor, the amount and substantiality factor is not in favor of the amateur knitter, as the pattern consists entirely of a method permitting to re-create a 3 dimensional version of a copyrighted character. As for the fourth factor, there is a market for television series knitting patterns, sweaters or toys, especially in Europe, and one could argue that providing free patterns has an effect on the market. However, the BBC does not sell Doctor Who knitting patterns, so this factor is in favor of the knitter. In any regard, a parody is fair use, and turning monsters into soft and cuddly toys could be considered a parody.

Sources to learn more about fair use: Tales from the Public Domain: BOUND BY LAW?, a comic book written by the folks at the Arts Project of the Center for the Study of the Public Domain at Duke University, and the site of the Stanford Copyright and Fair Use Center, and The Free Expression Policy Project at NYU's Brennan Center.