The Changing Face of Fair Use

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  • October 23, 2012
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Fair use is a principle of copyright grounded in the idea that the public is entitled to use excerpts of copyrighted materials without permission in the publishing of commentary and criticism.  Absent such permission, copyright owners would be completely immune to any negative response to their work. The difficulty for intellectual property law is, of course, the interpretation of fair use, which most often becomes subjective and a matter of degree. If a copyright owner doesn’t agree with your interpretation of what or how much use is fair then you risk being challenged for copyright infringement. And one of the tests in such a dispute will hinge on whether your use of the material could deprive the copyright owner of income.

As a world community we communicate more and more in a language that is audio-visual and internet-based. Fair use laws attempt to keep the lines of communication and artistry open to allow culture and language to flourish.

Because most fair use disputes are settled out of court, it is one of the areas of intellectual property law that gets handled case by case and doesn’t allow for much clear precedence to be set.

A 2008 case, settled out of court, concerned the John McCain presidential bid that utilized nine seconds of a Jackson Browne song, Running on Empty, in a commercial to highlight the McCain campaign’s view of Obama’s energy policy.  Browne sued and the Republican defense was that it was fair use as it was only a short excerpt which did not deprive Mr. Browne of song sales. Mr. Browne posited that the fair use law specifically states the use of excerpts is granted only for comment or criticism of the original work, which the commercial was not. Since this case was settled out of court, we can only look at both sides of the argument and make our own suppositions about the limits of fair use in the case.

Fair use is viewed by the courts through a lens called the four-factor test:

  1. Is the purpose and character of the use commercial or non-commercial?
  2. What is the nature of the copyrighted work?
  3. What is the amount of the original work used?
  4. What is the effect on the potential market?

Several recent precedent-setting fair use cases, viewed through that four-factor lens, have made it through the court system:

NXIVM Corp. v. The Ross Institute, 364 F.3d 471 (2d Cir. 2004)

NXIVM is an executive seminar business training company that came under scrutiny for their business practices.  Several portions of their training manuals were posted on line and commented upon as examples. NXIVM sued, as the manuals were presented without permission. The defense claimed that even though the manuals were ill-gotten, only excerpts were posted. They did not duplicate an actual seminar. which is the NXIVM business, and were specifically used for commentary purposes only.

Court conclusion: Favored The Ross Institute and fair use. Even though the source material was taken without permission and posted on a public website, it was still fair use as it encompassed strictly excerpts and, the use of which were for critical discussion only.

Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006)

Dorling Kindersley published a book about The Grateful Dead using seven historical concert posters as illustration without securing licensing rights from Bill Graham Archives, the copyright owner. DK had previously applied for those rights and had been denied. BGA sued, stating that their creative market was harmed by the publishing of the posters. DK maintained the posters were used as a visual historical timeline and not for their creative value, were greatly reduced in size compared to the originals, and did not seek to exploit the images of the posters, but to use them in a transformative context.

Court conclusion: The court found in favor of DK and fair use. Utilizing copied creative work in a reduced size is fair use as long as it is not exploitive of the creative work and is “transformative.”

Video-Cinema Films, Inc. v. Lloyd E. Rigler-Lawrence E. Deutsch Foundation, 2005 U.S. Dist. LEXIS 26302 (S.D. N.Y. 2005)

The Rigler-Deutsch Foundation created a broadcast program for the Public Broadcasting Service and cable television called CLASSIC ARTS SHOWCASE. They used an 85 second portion of a five-minute performance of an opera singer from the movie CARNEGIE HALL.

Court conclusion: The court found in favor of Video-Cinema and did not consider this fair use.  Even though the use was deemed educational, noncommercial and utilized only a small portion of the original work, it was outweighed by the potential loss of licensing revenue. Video-Cinema had already licensed the work for broadcast and it was deemed that the foundation’s use affected the market value of the original work.

Yoko Ono Lennon, Sean Ono Lennon, Julian Lennon, and Emi Blackwood Music, Inc, v. Premise Media Corp., L.P., C&S Production L.P. d/b/a Rampant Films, Premise Media Distribution, L.P., and Rocky Mountain Pictures, Inc., 08 Civ. 3813 (SHS) 2008

The feature film EXPELLED used a 15-second clip of John Lennon’s song IMAGINE without permission. Yoko Ono sued stating that this use would constitute commercial harm to further licensing the work.

Court conclusion: The court found in favor of the defendant. The clip was short and did not utilize the heart of the original composition, was not used for commercial gain, and was both commentary and transformative as it sought to criticize the song’s anti-religious naiveté.

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As long as small excerpts of works are used in a transformative context, filmmakers, artists, reporters and critics are allowed to utilize copyrighted materials without permission or payment.

Copyright owners, often large businesses, have spent considerable time and money to publicize the a warning that all copying is plagiarism. Fair use laws would say that this is not necessarily true, there is much in the grey area when it comes to copyright infringement.

Be alert to two red flags which could help you avoid a lawsuit: That you might offend the original owner of the copyrighted material, or that your creation harms the possibility of future sales of the original.

If you do find yourself facing a lawsuit, two public interest organizations, the Fair Use Project of Stanford Law School’s Center for Internet and Society, and the Electronic Frontier Foundation may be of help to you.  Something else to keep in mind: Even though you may win a fair use case, legal fees may not be recoupable.

Fair use laws are frequently being updated, so seeking legal advice from a copyright attorney before using copyrighted material can help you avoid exposure to fair use challenges.

 

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