What Is Fair Use?

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What Is Fair Use? © 2014 David Lizerbram & Associates®

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When Should I Ask This Question? Any time you’re using all or part of someone else’s copyrighted work without permission. This presentation will provide some basic guidelines about copyright fair use. Trademark fair use is will be covered in a future presentation. Always do your due diligence and consult a professional if you run into any questions or challenges.

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Reminder: What’s a Copyright? The U.S. Copyright Office defines copyright as “a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression.” Copyright can be understood as the right to control who makes copies of your work. The Copyright Clause of the U.S. Constitution (Article I, Section 8, Clause 8) empowers Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Congress created several copyright laws. As of January 1, 1978, copyright law in the U.S. is governed by the Copyright Act of 1976, as amended (the “Copyright Act.”)

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Copyright vs. First Amendment The First Amendment to the US Constitution reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” There is a tension between copyright – a monopoly on expressive works granted by the Constitution, common law, and Federal statute – and the First Amendment’s guarantee of freedom of expression and of the press. Fair Use is how the law attempts to resolve that tension.

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Fair Use In the US Copyright Act 17 USC 107 Reads: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: (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 fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

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How Do You “Claim” Fair Use? Fair Use is a defense to a claim of copyright infringement. This means that the copyright has been infringed – you have used a copyrighted work without the owner’s permission. In the event you are successfully able to assert Fair Use as a defense, the infringement case against you will fail. To see how this might work, let’s examine the four-factor test that was outlined in the Copyright Act section from the previous slide…

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Factor 1: The Purpose and Character of the Use How is the alleged infringer using the copyrighted work? Even if the work is used commercially, if the use is sufficiently “transformative,” a finding of fair use may result. A transformative use adds something new to the original work. The copyrighted work will then have a new meaning or message This is why Saturday Night Live (and other for-profit parodies) typically get away with using copyrighted works. Their transformation of the work changes it enough to make the message of the work different – often commenting on (or poking fun at) the copyrighted work itself. We’ll get into parody in more detail later in the presentation.

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Factor 2: The Nature of the Copyrighted Work If the copyrighted work is inherently creative, such as a book or a fictional movie, it will be entitled to greater copyright protection compared to an informational or a functional work. It follows that the more creative a work is, the less likely an alleged infringer will be able to rely on a fair use defense.

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Factor 3: Amount and Substantiality of Use When someone uses a copyrighted work, the amount she uses is taken into account when determining whether or not the fair use defense applies. However, even if it is a small percentage of the work, courts will also look to see if the infringer has used the “heart” of the work. The “heart” is the most significant or recognized portion of the entire work.

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Factor 4: Effect on the Work’s Market or Value Does the infringed use somehow lessen or impair the market demand for the original copyrighted work? In other words, can people get the same fulfillment out of the infringing use of the work as they can out of the original work? If the contested use impairs the revenue the copyright owner could realized from a licensing agreement, that will be taken into account.

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What Does This All Mean? Because of the ambiguities in the four factor test for fair use, it can be difficult to determine whether or not a work or a piece of a work is “fair” for a particular use. Not all 4 factors are weighed equally – for example, courts often tend to put greater emphasis on the first factor, the purpose and character of the use. Some important fair use cases can provide some guidelines about what may or may not be considered fair use. There are countless fair use cases, and courts don’t always agree on the basic principles. A few cases of note are reviewed in the following slides.

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Important Fair Use Cases Libraries provided Google with books to scan. The libraries used the scans for 3 purposes: Preservation A full-text search engine Electronic access for those who were not able to read print versions due to disabilities These purposes were held by the court to be transformative (which goes to Factor 1 - this word will come up again and again.) The court also found no evidence of financial harm. The Author’s Guild v. Hathitrust, No. 1:11-cv-06351-HB (S.D.N.Y., October 10, 2012)

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Important Fair Use Cases: 2 Live Crew v. Roy Orbison 1980s rap group 2 Live Crew produced a vulgar version of the Roy Orbison rock classic “Oh, Pretty Woman.” The rap version included the song’s musical hook and some of the lyrics. They did not get permission from the copyright holder, Acuff-Rose Music, who sued. The case went to the United States Supreme Court. The Court held that the 2 Live Crew version was a parody and was therefore protected under the fair use doctrine. Regarding Factor 3 – the amount & substantiality of the work used – in the case of a parody, the Court said, ”…even if 2 Live Crew's copying of the original's first line of lyrics and characteristic opening bass riff may be said to go to the original's 'heart,' that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim.” Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)

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What’s a Parody? According to Dictionary.com’s first definition, a parody is “a humorous or satirical imitation of a serious piece of literature or writing.” Don’t confuse parody with satire. Satire uses all or part of an existing work for social commentary. Parody, on the other hand, makes fun of the underlying work itself. Even after the 2 Live Crew case, we can’t assume that all parodies are automatically protected under fair use. The 2 Live Crew Court stated: The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioner's suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair. So all 4 fair use factors must still be considered even in the case of a parody.

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Important Fair Use Cases: The Cat Not In The Hat! An author used the style of Dr. Seuss – including such distinctive elements as the Cat’s red-and-white striped hat – to tell the story of the O.J. Simpson case. Dr. Seuss’ widow, Audrey Geisel, sued. The 9th Circuit Court of Appeals held that this was not fair use, as it was a satire, not a parody of Dr. Seuss’ work. Furthermore, the work was found to be non-transformative and commercial. Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997)

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Important Fair Use Cases: Jersey Boys A 7-second clip from the Ed Sullivan show was used in the Broadway musical “Jersey Boys” without permission. The 9th Circuit found that this was fair use because: The use was transformative (there’s that word again) – the clip was used in a new context, to help tell the story of the 60’s group the Four Seasons. No financial harm was caused to the copyright holders of the Ed Sullivan clip due to this use. SOFA Entertainment, Inc. v. Dodger Productions, Inc., No. 2:08-cv-02616 (9th Cir. Mar. 11, 2013)

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Important Fair Use Cases: The Twitter Photo Case In January 2010, Daniel Morel posted his photos of the Haiti earthquake’s aftermath on Twitter. The photos were picked up by Agence France-Press (AFP) and were eventually published in the Washington Post. Morel sued. While acknowledging that retweets (RTs) are a part of the Twitter landscape, the judge was not willing to extend the same right to copy images outside of Twitter itself. Despite the newsworthy nature of the photos, this was not held to be fair use. Agence France Presse v. Morel, 2011 WL 147718 (S.D.N.Y. Jan. 14, 2011)

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What’s the Future of Fair Use? Due to several recent rulings expanding our understanding of the “transformative” issue, there is a perception that the fair use doctrine has been liberalized in recent years. This suggests that courts are more willing to find a use to be “fair” where that use puts the underlying work in a new context or adds additional information. However, the Twitter photo case could be said to go in the other direction. Until the courts or Congress provide some additional direction, it will remain challenging for people in the real world to have certainty that their proposed use of a copyrighted work is fair. As always, you’re advised to seek qualified legal counsel before using all or part of a copyrighted work – never just assume that your use is “fair” because your intentions are pure.

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Prepared and Presented by: David Lizerbram, Esq. David Lizerbram & Associates® David@LizerbramLaw.com www.LizerbramLaw.com Twitter: @LizerbramLaw Direct Phone: (619) 517-2272 4080 Centre Street, Suite 205 San Diego, California 92103 Slideshare.net/DavidLizerbram

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FINAL NOTE: THIS PRESNTATION IS NOT LEGAL ADVICE I am not your attorney. Nothing in this presentation should be taken as legal advice. This is simply general information that may be helpful. Consult an attorney if you have any specific questions or concerns.