What is Fair Use, and when does it apply?
Hi, I'm attorney Gordon Firemark, and this is Asked and Answered, where I answer your entertainment law questions, to help you take your career and business to the next level.
One of the most important concepts in copyright law these days is “Fair Use” But there are a lot of misconceptions out there about it.
Among the most common of these is the notion that there's some “rule of thumb” about how much of a copyrighted work you can copy without being liable for infringement. In music, people say that if it's less than 4 bars, it's OK. (It’s not)
Another is that if you're not making money from your work, it's not a problem. (It is)
And another is that if your use is for educational purposes, you can copy pretty freely (you can't).
Although all of these notions have their roots in the principles of fair use, it's never quite as simple as these “rules” make it seem Unfortunately, Fair Use is anything but simple. In fact, it's one of the more complicated aspects of copyright law.
So, in this video, I'm going to give you a brief explanation of fair use, but it's important to understand that there ARE no rules of thumb. Each case has to be evaluated standing on its own.
OK, here goes.
Fair Use is a doctrine that evolved under the old US copyright law (the 1909 Copyright Act) and then was codified or made a formal part of the copyright statute when it was updated in 1976. The principle is simple. To deal with the inherent conflict between the free speech principles of the First Amendment and restrictions on copying imposed by the copyright law, it was necessary to create a defense to infringement for certain kinds of uses under certain circumstances. To do this, the courts and Congress set up a multifactor test. It looks at four factors.
The first of these is the purpose and character of the alleged infringing use. Educational, scholarly, critical criticism, commentary, and other artistic or transformative uses will weigh in favor of fair use, while commercial or more verbatim copying will tip the balance in the other direction.
The second factor is the amount and substantiality of the portion taken from the original. This is where the idea that taking only a small snippet is okay comes from. But in reality, it's actually possible to take the very heart of a piece without copying very much of it at all.
Th third factor is the nature of the original work. If it's an artistic work, it's going to be treated very differently than if the original was something very commercial like a billboard ad or a TV commercial jingle.
The fourth element or factor is the potential impact on the market for the original if the infringement were allowed to continue. Now obviously, if there's no real market harm, this factor's going to favor fair use. But if the market is strong for this kind of thing, and the copying looks like it's just a way to avoid paying for rights or whatever, things are going to come out differently in this factor.
Now none of these factors is dispositive of the question. The court will look at the overall balance of the factors in making its determination on whether something is Fair Use, and I want to emphasize that this is not a one size fits all thing. Each alleged infringement has to be viewed standing alone by the court in a copyright infringement case. It's not something you just decide, “This use is Fair Use, and so I'm going to go ahead.” By the time most folks get to argue about whether their use is fair, they're already being sued, and they're paying lawyers tens of thousands of dollars to defend them. That's not really ideal when we're talking about YouTube videos, right? In that case, what's more likely to happen is if the owner of the original material objects to your use, it'll issue a DMCA takedown notice, and YouTube will comply. Then if you respond with a counter notice in which you can make the Fair Use argument and the material is restored, the other guy may choose to sue you, and then you get to argue about things in court.
But if you're doing a project where the time and expense justify it, and if you're sure you need a particular bit of copyright protected material, the best course of action is to ask for permission or a license, even if that means paying something for it. If you're certain the permission will be denied, and you're fairly sure that Fair Use will apply, it's wise to get a lawyer's opinion letter on the subject. Without it, your production won't be able to get insurance, and without insurance, it's going to be really hard to get distribution.
So, let's recap.
There are four Fair Use Factors. None of them controls the outcome. They are:
- Purpose and character of the alleged infringing use
- Amount and substantiality of the portion taken
- Nature of the original work
- Potential impact on the market for the original.
Now, there have been some interesting court rulings on fair use in the past few years. If you are a content owner, and someone has used your stuff without permission, it's no longer OK, to just send a DMCA Takedown notice. The Courts have ruled that before filing that notice, a copyright holder must actually consider the issue of fair use. If you don't, you could be countersued, essentially for abuse of the DMCA process.
So. Fair Use can get pretty tricky. If you're in a situation where it's likely to be a factor. You really DO need to get in touch with an experienced entertainment or copyright lawyer.
Now, I’ve prepared a handy Fair Use Quick Reference Guide that you can download for free. Just visit https://firemark.com/fairuseguide, provide your email address, and it's yours.
And… If you have a question you'd like to see here on Asked and Answered, just visit https://firemark.com/questions and let me know.
See you next time!
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