With the advent of decentralized online entertainment, such as the numerous streaming sites where users create their own content, in turn drawing more users to the sites, copyright infringement and the fair use exception are having their moment in the limelight. The employment of fair use disclaimers has become ubiquitous, with seemingly every viral video invoking the fair use doctrine. Unfortunately for many of these creators, the invocation of fair use does not instantly precipitate its protection, and if someone is seeking to utilize this exception, they need to begin by understanding fair use law. In this article, we will break down several topics, including copyright definition, copyright infringement definition, and fair use guidelines to provide the reader with a better understanding of this complicated area of law. In particular we will answer:
- What is copyright?
- What is copyright infringement?
- What is the fair use exception?
- What are the four factors of the fair use exception?
- What is transformative use?
- What else do courts factor in when considering the fair use exception?
- Are fair use disclaimers effective?
What is copyright?
Copyright is the system employed by the United States to provide content creators with exclusive rights over their creations. Under the Copyright Act, the law defines this protection as applying to “original works of authorship” in the areas of literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual pursuits. You can think of copyright in particular providing ownership over film, music, art, and the products of other creative industries. These exclusive rights include the ability to reproduce the work in question, to create derivative works, distributing the work, to perform the work for the public, and to display the work to the public.
What is copyright infringement?
Copyright infringement occurs whenever the exclusive rights of the owner of the work are violated without the owner’s permission. This includes displaying the work in its entirety, or portions of the work, on an online channel. If the rights of the owner have been violated, and the violation does not qualify for an exception, the owner will have legal recourse against the person committing copyright infringement.
What is the fair use exception?
Under Section 107 of the Copyright Act, in the promotion of free speech, the law carves out a limited exception to the otherwise exclusive rights of an owner of a copyrighted work. You can understand the fair use exception by keeping in mind the spirit of free speech it is intended to serve: the exception covers commentary, criticism, education, research, scholarship, and other pursuits that allow dialogue and productive growth to come from the work. Section 107 delineates 4 factors courts are to consider when reviewing whether an unlicensed use of a copyrighted work qualifies for the fair use exception:
What are the four factors of the fair use exception?
- Section 107 (1) - The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
The first factor courts are going to look at when considering the fair use exception is the purpose of the unlicensed use. Considering the free speech policy goal of the fair use exception, the user’s intention will factor heavily in the courts decision making process. If the purpose is more inline with the spirit of the exception, i.e., educational, scholarly, commentary, and generally non-commercial, the court is more likely to find the use falls within the exception. Intuitively, someone who incorporates a portion of a copyrighted work in educational material is more likely to be acting in the spirit of free speech, than a person who is selling copies for profit.
Keep in mind however that this preference for non-profit is not comprehensive. Not all educational or scholarly reproductions are going to qualify for the fair use exception. Whole reproductions of copyrighted works, with little or no commentary added, are unlikely to be extended this protection, regardless of the goals behind the reproduction. Conversely, not all commercial uses of copyrighted material are disqualified from the fair use exception.
- Section 107 (2) - The nature of the copyrighted work;
To understand this factor, keep in mind copyright, as part of its free speech policy goal, serves to protect creativity by providing creators with ownership rights over their work. This protection is intended to promote creative expression, encouraging artists to produce new and unique works. As such, when considering fair use, courts will consider the degree to which the copyrighted work encouraged creative expression. If a copyrighted work is particularly creative, courts are more likely to find that unlicensed uses are not fair use. Conversely, if a copyrighted work is more technical or factual, courts are more likely to uphold fair use, as the threat to the promotion of creative expression is less pronounced with uncreative work.
- Section 107 (3) - The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
Courts consider the portion of the overall copyrighted work that has been incorporated without license into the new work. Fair use is more likely to not apply if a significant amount of the copy righted material has been borrowed. Courts also consider what part of the copyrighted material has been employed. They are likely to find that if the “heart,” or what they consider the most important aspect of the original, has been reproduced fair use is less likely to apply. Again though, this is not comprehensive. Courts have upheld the use of an entire copyrighted work as fair use in some contexts, and in others found the reproduction of even a small portion as an inexcusable copyright infringement.
- Section 107 (4) - The effect of the use upon the potential market for or value of the copyrighted work.
When considering this factor, courts look at the economic impact that the new work is likely to have on the copyrighted material. The operative question is whether, and to what degree, sales or public appetite is likely to be diverted from the original material to the new work. If the unlicensed use is likely to divert a significant portion of the economic value to the new work courts are significantly more likely to find that fair use does not apply. In contrast, if the works are sufficiently distinct that they appeal to different markets, fair use is more appropriate.
What is transformative use?
In a landmark 1994 decision, the U.S. Supreme Court delineated the concept of “transformative use,” to describe a type of creative unlicensed reproduction that would constitute fair use. The case involved a group of rappers who had borrowed the opening line and musical flourishment from a classic rock standard, to use in their music. The U.S Supreme Court shocked legal observers when they found in favor of the group of rappers, arguing that they had transformed the original work into something new, with a different character that did not substitute the original meaning for their own. It is important to couch this concept with a few notable points from this case: only a small portion of the original song was borrowed, which did not include the melody for which the song is particularly memorable. Since that point, transformative use has become a test employed by courts to determine if a work has sufficiently moved past the copyrighted work it samples, and in so doing qualifies for fair use.
What else do courts factor in when considering fair use exception?
While the above factors constitute the legal test courts are to apply when considering a fair use exception, it is important to understand that this is a balancing test. What this means is, while courts are supposed to work within this framework, they have a wide breadth to determine whether fair use is appropriate. It is in their discretion to decide the balance of the four factors, and to apply them to the circumstances in the case. Every case will be different, with somewhat different factors playing more or less important roles. Keep in mind as well that no legal preceding is perfect, and personal taste can play a significant role in the outcome of a case. This is all the more likely when applying a balancing test that provides greater room for someone’s whim. Anything that is patently objectionable to the court has a higher likelihood of failing the test, as courts may be less sympathetic to arguments in favor of fair use.
Are fair use disclaimers effective?
The simple answer is no, but it is a little more complicated than they are flat out useless. Invoking fair use with a disclaimer along the lines of, “I invoke the protection of the fair use exception to any copyright claim against my work,” does not mean the work now qualifies for the fair use exception. However, what disclaimers may do, and especially the more thought out less boilerplate variety, is signal to the court that this was the creator’s mindset when they made an unlicensed use of the copyrighted material. The 4 factors of the fair use test still apply, so if the infringement was for purely economic reasons, or the work has been borrowed on too heavily, any disclaimer is likely to afford little protection.
Request a consultation with an experienced copyright attorney.
The qualified copyright attorneys at O’Flaherty Law are ready to help you with a fair use exception question. We know the law around this complicated issue and are prepared to fight for you. Call our office at (630) 324-6666, email info@flaherty-law.com, or schedule a consultation with one of our experienced copyright lawyers today. You can also fill out our confidential contact form and we will get back to you shortly.
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