Fair Use – Schmair Use

If you are a lawyer advising clients on content issues and creative campaigns you have invariably heard the refrain “but it’s fair use.”  If you are one of those clients who have said those words, please read this post carefully, and stop saying that.  Fair use is one of the most overused outs in intellectual property law, and is the most misunderstood by clients.  Truth be told, it is also a hard subject for lawyers, too.

You Can’t Cry Fair Use 

Fair use is the realization that allowing people to use otherwise protected content can be a good thing for society.  As long as it is within certain boundaries.  There are four factors in the fair use determination in the United States:

  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.

(SOURCE – 17 U.S.C. § 107 from the Legal Information Institute)

You may think that now that I have provided you factors that you can use, you are qualified to make that final determination.  YOU ARE NOT (and I am pointing at the lawyers, as well).  Quite frankly, neither am I.  If someone tells you that what you are doing is fair use and they are not a judge, they are wrong.  The only entity in the US that can make a fair use determination is a judge.  All us lawyers are doing is giving you arguments.

Honestly though, there are some easy calls.  A professor taking a passage from a recent translation of Les Miserables and putting it in a slide presentation is very likely fair use.  That doesn’t prevent the copyright holder from asserting copyright infringement of that work, because it is.  Fair use doesn’t make the infringement go away, it just gives you a defense.  To reiterate the point though, only a judge can rule that your defense has merit.

I Came Here Expecting an Argument

An argument is all that your counsel is going to provide you, and all that you are going to provide your client.  There are good arguments and there are bad arguments.  If you are in a non-commercial setting, you have greater latitude than for-profit commercial companies.

If your use is commercial, your arguments under the fair use doctrine are limited.  I have heard some clients try to tell me that only external uses are commercial.  They are wrong.  An internal presentation is still a commercial purpose.  Everything you do if you are a company is for a commercial purpose.

There are other arguments to be made.  You can argue that your use does not hurt the market for the original.  If your business is commentary or humor, you can argue that your use is just that.  You can argue that it is a parody of the original.  You can argue that the use is satirical.  You can even argue that the use is transformative.  At the end of the day, they are only arguments.  If you hear from a lawyer that “that is fair use,” you need to translate that to “that is probably fair use.”  What they are doing is formulating a fair use argument.

Playing Fast and Loose

I have never been a fan of rigid rules, nor of too much overhead.  Lawyers create overhead.  So, let’s look at more of a practical approach to this analysis.  If we look at the graph where the x-axis represents the amount of the copyrighted work you have used, and the y-axis represents the size of the audience.  What this graph shows is the amount of legal exposure you may have.  High and to the right is not a good place to be without an opinion, or a 102 mph fastball.

Legal_Exposure_Chart

Please don’t get me wrong.  This is not meant to justify copying someone else’s creative work just because your audience is small.  I am just telling you the reality of the world.  If a tree falls in the wood and no one is there does it make a sound.  I say yes.  If you use a copyrighted work and the owner never knows about it, is it still infringement?  I yell YES!

However, your analysis for a full page ad in the New York Times will be different from your analysis for a presentation given to a closed room of executives.  I am talking about  a sliding scale of work for the lawyer.  Spend more time on that full page ad, and maybe even a full blown opinion letter.  Spend less time, if any time, on that presentation.  There are only so many hours in the day, and while you probably should have a fair use opinion for every piece of copyrighted material you use without permission, you don’t have enough lawyers for that.

Related Topics for Later

  • Copyright Licensing, aka getting permission
  • Creative Commons licenses, aka giving permission ahead of time
  • Trademark fair use, aka using a logo in your content

NOTE: this post is directed to United States law.  Each jurisdiction across the world handles this differently.  In all cases, consult attorneys licensed in that jurisdiction and area of law and get their counsel before infringing on other people’s work.

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