What does a fair use trial take? Sometimes, a whole lot of grit. Credit: The New York Public Library, New York. The New York Public Library Digital Collections https://digitalcollections.nypl.org
Every conversation I have with clients about fair use is really a conversation about their tolerance for risk. Instead of a definitive set of black and white rules on which clients can rely, all we have is, first, a set of four infamously vague factors that courts use to determine whether a particular unauthorized use of a copyrighted work is fair, and second, a bunch of sometimes contradictory court cases that interpret those four factors. And, to make matters worse, even if you and your attorney are confident that you’re protected by fair use, an aggressive copyright-holder may still flex their muscles to test your mettle.
So, what do we really talk about when we talk about fair use? We talk about risk. But to properly access that risk, first we need to talk about the basics of fair use.
Copyright and the Exclusive Rights
If you’re inquiring after fair use, then you already know that creators of original works of authorship, i.e., songs, photographs, movies, etc., have been granted certain exclusive rights to use those works. Among those exclusive rights are the rights to reproduce, distribute, and publicly perform the work. If you want to do any of those things to a copyrighted work, then you need permission, i.e., a license, from the copyright-holder.
That’s good – we want creators to feel incentivized to create works. By granting them the exclusive right to profit from their works, we at least theoretically do just that. But we also want to provide a robust public domain from which other creators can create other works. We want people to use portions of copyrighted works to tell their stories, to transform old works into new works that benefit society. We want people to use copyrighted works in criticism, reporting, teaching, scholarship, and research.
The tension between copyright law and the First Amendment is why we need a safety value. Fair use, first created by courts and then codified in the Copyright Act, is that safety value – it’s the mechanism by which we determine when a particular unauthorized use of a copyrighted work should be permissible and when it shouldn’t. To accomplish that task, the doctrine of fair use actually needs to be vague, needs to be a balancing of factors. With so many different kinds of works and uses out there, it would be impossible to create a single set of bright-line rules. The vagaries of fair use is both its blessing and its curse.
Fair Use and the Four Factors of Apocalypse
According to the Copyright Act, whether a particular use of a copyrighted work is fair depends on (1) the purpose and character of the use; (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. However, none of those factors are determinative and must all be weighed together in determining whether a use is fair. And to make matters worse, other factors may be considered.
(1) The Purpose and Character of Use
The first factor often also includes an analysis as to whether the use of the copyrighted work was “transformative,” i.e., whether the existing work is merely duplicated in the new work, or whether the new work incorporates the existing work in a way that results in a new statement. Transformative use is not an absolute requirement for a finding of fair use, but it is considered to be the most important factor of the four.
Parody often involves holding an existing work up to ridicule or comment in a way that is transformative of the existing work. In one particularly notorious fair use case, a track by the rap group 2 Live Crew featured bawdy lyrics set to the tune of Roy Orbison’s “Oh, Pretty Woman.” The Court concluded that the use was a transformative use because the song could reasonably be perceived as commenting on or criticizing the original to some degree. Whether the parody is in good or bad taste is irrelevant – the standard is whether or not it may reasonably be perceived as a parody.
Commercial use tends to weigh against a finding of fair use, while use for education, critique, and news tend to weigh in favor of finding of fair use. Again, none of these facts alone is dispositive in establishing whether a use is fair, but they are weighed in the analysis. For example, 2 Live Crew’s parody was for commercial use, but it was still found to be fair use because other factors were enough to weigh in favor of fair use. Likewise, non-commercial or educational uses are not always presumptively fair uses.
In determining whether a given use of a copyrighted work is fair, courts will look at what kind of work was copied. If the copied work is non-fiction (e.g., a biography, a scientific study, etc.), then there is a stronger argument for a finding of fair use. Fiction, on the other hand, tends to involve more originality and creativity on the author’s part, and so weighs against a finding of fair use where that creative work is used without the author’s permission. Whether the work is published or unpublished is also a relevant factor.
(3) The Amount and Substantiality of Portion Used
One common misconception about fair use is that anything taken that is under 30 seconds or a certain word count presumptively counts as fair use. Yes, the more you take, the less likely it is to be fair use, but the quality or substantiality of the portion taken also matters. Taking the “heart” of the work weighs against a finding of fair use. In another infamous case, an editor of a magazine received a copy of President Gerald Ford’s unpublished memoir from a secret, unauthorized third party. A 2,250-word news story was printed in The Nation, featuring about 300 words copied verbatim from the manuscript. The quoted excerpts concerned Ford’s observations and reflections about President Richard Nixon. Although 300 words was not a substantial part of the total manuscript, the taking still weighed against a finding of fair use because it was essentially “the heart of the work” as “the most interesting and moving parts of the entire manuscript.”
Put differently, five seconds of use may still be found to have infringed a copyright, while two minutes of use may be a fair use, depending on the quality or substantiality of the portion taken, as well as how other fair use factors come into play.
(4) The Effect of the Use Upon the Potential Market
Courts also look at the effect of the taking on the copyright-holder in the market. For example, with the taking of parts of President Ford’s memoir, the copyright-holder suffered economic harm since they could no longer market the first serialization rights of the manuscript following The Nation’s publication. Depriving an author from earnings, whether from their current or potential markets, weighs against a finding of fair use.
Analysis of this factor differs a bit for parody or critique. A parody can ridicule the original work to the point that it can no longer be taken seriously. A bad review can kill the demand for the work. But these are not harms that are recognized under the Copyright Act. The harm that is relevant is where the original is likely to be substituted by the new work.
Fair use is what’s known as an affirmative defense – it’s an argument you make after someone accuses you of copyright infringement. So before you rely on it, it’s important to really consider how a fair use claim is likely to play out. First, who owns the copyrighted work in question? Is it some notoriously aggressive party like Disney? If that company does accuse you of copyright infringement, then are you prepared to expend the resources it might take to make a fair use argument, knowing that we can never totally predict in advance how a court is likely to weigh the four factors in your particular case?
Also, what’s likely to happen to the work that you created while this fair use argument is playing out? If, for example, a record label is distributing your album, then they are far more likely to simply pull the record and freeze your royalty account until the matter is resolved. Or they may choose to rely on the indemnity clause in your record deal, you know, the one that says you have to reimburse them for any third-party claims, and simply settle the case, even without your consent, just to get the issue out of the way. If you’re trying to clear a work before releasing it, then remember that record labels are inherently conservative – you better hope you have what everyone thinks is a slam-dunk fair use case, or the label may require an expensive license anyway.
To be clear, I’m not suggesting that you never rely on fair use. You should. It’s important that you do. We shouldn’t let aggressive copyright-holders create a chilling effect that eviscerates fair use. But, at the same time, before you make that call, you should determine what your, and if applicable, your third-party partner’s, appetite is for risk.
I use the cumbersome term “copyright-holder” to illustrate that the person or entity that owns the work may or may not be the person or entity that initially created the work.
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583 (1994).
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582 (1994).
Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 564 (1985).