tourdeforce, you're expressing a common misunderstanding of court verdicts and judgments. As a general principle, one should remember that no defense verdict or judgment means that the defendant had a right to do what the plaintiff sued the defendant for (allegedly) doing. It means only that the plaintiff did not establish its right to have the court order relief based on the defendant's actions. That can come from an actual right of the defendant that operates as a complete defense. Far more often, though, it comes from procedural failures, poor lawyering by one side or the other, shoddy or inadmissible evidence, or a mismatch between what the plaintiff wants and what the court has the power to grant. And that is especially so in copyright actions.
A win on a fair use defense (and it is a defense — you can tell because the burden of establishing fair use is on the defendant) does not mean that the defendant had a "right to use" the material. It establishes that the plaintiff could not overcome a defense to its (the plaintiff's) right to control others' use of the material before that particular court on that particular claim. It does not, for example, mean that the defendant can expand its use of the material, or change its use of the material, or change what the material was used in — each of those, with the right (and most common) set of facts, can allow the plaintiff to file a new and stronger claim.
tourdeforce, I'm not making a personal comment directed at you... but I am getting really, really sick of activists claiming that fair use is a right, and that copyright infringes "the public"'s right to do whatever the hell they want with anything. Copyright is a balancing act. There are elements of it that need to be altered, such as the (unconstitutional) work for hire doctrine and the (somewhat) excessive length. It is not an infringement on anyone's right of free expression — in Nation Enterprises, the Supreme Court explicitly remarked that the copyright act represents Congress's judgment of the balance between an enumerated power of Congress (Article I, § 8, cl. 8) and the First Amendment, and that judicial review of that balance is more than sufficient to preserve free expression.
What's really ironic about this whole argument is that the American concept of "fair use" is far broader than just about anyone else's parallel defenses to copyright actions. "Fair dealing" in the UK, Japan, Australia, etc. is quite a bit narrower, and in most of continental Europe it's not even a statutory defense — it's a judge-made defense limited to the particular circumstances (and limited far more narrowly than the five-factor test in § 107 of the US Copyright Act)*. In fact, the Berne Convention says not one word that one can construe as creating a fair use/fair dealing defense!
The bottom line remains this:
The best policy for dealing with questions of fair use is almost always common courtesy. It is not easier to get forgiveness (a post-use license agreement or win in court) than it is to ask permission. There are some circumstances in which that permission will not be forthcoming — intransigience, nonresponsiveness, inability to locate the copyright holder — but that is not an excuse for not trying. And, in any event, the question of how to document the use (whether by license, by permission, or by relying upon fair use) is going to be made by the publisher, so the publisher's discretion controls. Even if it is "objectively" a fair use, if the publisher's guidelines say that one must have permission, one must have permission. That's part of (or, at least, should be part of) every publishing contract.
* Yes, I said five factors. Section 107 lists four; in practice, courts always consider administrative convenience, even if not explicitly, in determining whether a particular use was fair.
