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, and misunderstood, concepts in intellectual property.
Note: Continuing a trend this week, today’s post edits and updates my thoughts from two months ago on 6/11, Fair Use – Schmair Use.
Back to fair use. I don’t know whether creatives first hear fair use in their education and think it is a blanket license. Maybe that is where this starts, because in education there is much more latitude with defenses to copyright infringement. The problem is that everyone seems to continue it into their professional lives. That is also where it get’s expensive.
You Can’t Cry Fair Use
Fair use is a legal creation recognizing that people using otherwise protected content can be a good thing for society. As long as it is within certain boundaries, of course. 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.
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 calls that are easy to make. 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. Let me say that again. You are infringing the work, fair use only gives you a defense. To make it even more fun, only a judge can finally determine whether the use is fair or not.
I Came Here Expecting an Argument
An argument is all that a lawyer is going to provide you. There are good arguments and there are bad arguments. If you are in a non-commercial (read educational) 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. Thankfully for the corporate folks out there, commercial use is only one of the factors. If you are making money, a good argument can be made that you owe royalties for the use of someone else’ creation.
There are other arguments to be made, as well. 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, not telling you it is or is not. Though the nice thing about a lawyer telling you that is that you can point the finger at him when you end up in a plight like Mr. Brainwash.
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.
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! It’s just that practically it gets lost in the noise of the world.
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.
At the end of the day just ask yourself (and honestly answer yourself) how you would feel if you were the creator. The madder you would get, the more you need to get the right advice.
Related Posts and a Placeholder for Later
Creative Commons licenses, aka giving permission ahead of time
DISCLAIMER: 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.