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“Does this count as fair use?”

One of the more loaded intellectual property questions you can ask an attorney.

What facts need to be present to establish fair use as a defense?

Nobody knows. New creations are, by definition, without limit. But, over time the USPTO has developed a set of rules, policies, procedures, customs, and human relationships which make the process a combination of interpretation of facts and application of rules into a rigid and deterministic #algorithm.

So, how do I answer this question?

The “Fair use” defense is articulated in Section 107 of the Copyright Act, but there are legal principles for the promotion of progress of science and useful arts established in the U.S. Const. Art. I, § 8, Cl 8, and further confirmed by the Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994). It is also established that fair use is equitable in nature, which adds +1 dimension of complexity.

Read Section 107

In analyzing and parsing the rules on whether a particular use would be considered fair use, the law provides a plain language answer “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” This is not an exhaustive list.

Four elements:

  1. The purpose and character of the use (including whether such use is of a commercial nature or is for nonprofit educational purposes)

Transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors.” Campbell, 510 U.S. at 579.

Generally, commercial use “tends to weigh against a finding of fair use” because “the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985). But, rather importantly, direct economic benefit is not required to find a commercial use. See A&M Records v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001).

  1. The nature of the copyrighted work

Highly expressive, original, and creative content (e.g., works of fiction or fantasy) receives the highest level of protection, while content containing purely factual information (e.g., nonfiction) receives the lowest. See, e.g., Peter Letterese & Assocs. v. World Inst. of Scientology Enters., 533 F.3d 1287, 1312 (11th Cir. 2008); see also Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1118 (9th Cir. 2000) (second factor “turns on whether the work is informational or creative”).

  1. The amount and substantiality of the portion used in relation to the copyrighted work as a whole (i.e. quantity vs. quality of change)
  2. The effect of the use upon the potential market for or value of the copyrighted work

Authoritatively, not a formula: These four factors are not supposed to be “counted up,” but each evaluated independently and then weighed together in a holistic manner. Even if the score is three factors to one, the one factor may win out depending on the facts and circumstances of the case. See, e.g., Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1260 (11th Cir. 2014) (finding the district court erred in giving each of the four factors equal weight and in treating them “as a simple mathematical formula”).

A big distinction that lay persons have trouble with is understanding the binding nature of precedent.  District court decisions on similar fact patterns in other states are at best persuasive, but decisions of the jurisdiction’s circuit court of appeals are binding. Therefore, one should always expect to find a morass of cases that both support and undermine your argument for successfully invoking fair use as a defense.

My legal advice – if you are concerned that your use of another person’s work may violate their copyright, practically speaking, what should you do?

  • Get permission from the copyright owner.
  • Don’t use it.
  • Try and get forgiveness instead of permission.

Ask yourself: are you making money out of this? How much of their work did you use? Can the copyright owners license the work to you? Are they going to sue you if you don’t? Often, there are public source or open source alternatives that may be used to include a work that doesn’t have a copyright. Find a different non infringing path artist!

Credit—this article itself fairly relies on non-fiction public sources.  For more information see Fair Use Considerations Practice Note by Jeremy S. Goldman and Nimmer on Copyright § 13.05.

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