Know When Your “Fair Use” of Copyrighted Works is Allowed

We’ve spent a bit of time talking about how under US copyright law, the law exists to further public education. And there are many, many sections of the US Copyright Act, at least 15 of them, that place limits on what owners can do with their copyright. There are certain kinds of uses of copyright that the law says to an owner you do not have exclusive right to control this work. And one of the most important parts of US Copyright Law is called Fair Use. Before 1976, fair use was just a doctrine, made by judges. But after 1976 it actually became a part of the law and so fair use is not some kind of exception to copyright.

It is part of copyright and a part of copyright law. What I want to do for the next couple of minutes is to identify for you the actual words of this part of the Copyright Act, and then some cases that have given us a better understanding of fair use. So first of all, we begin with a sentence that says notwithstanding the provisions of sections 106 and 106A, and what you should know, and that’s simply referencing. Not withstanding the part of the Copyright Act that give owners exclusive rights. The fair use of a copyrighted work, including such use by a reproduction in copies or phonorecords or by any other means specified by that section.

For purposes such as criticism, comment, news reporting, teaching, including multiple copies for classroom use, scholarship or research is not an infringement of copyright. The takeaway here in this part of the copyright act does go on, there are some other very important clauses. The take away is fair use is not an infringement. If you are making a fair use, you are not infringing. You are engaging in a lawful use. And look at the kind of examples that are actually a part of the law, criticism, comment, news reporting, teaching, scholarships, and research. And by those words you can really feel that copyright law exists to support education, the discussion of ideas, speech.

When we are undertaking a Fair Use analysis, the statute requires that we look at four factors, and we do look at number one, what’s the nature of this use? Is this use by an educator in a nonprofit educational setting, is it being used by a for profit entity? That does not decide whether or not the use is fair, it’s one factor. We tend to favor a lot of non-profit uses as fair uses, but then as you’ll see a lot of commercial uses can also be fair uses if the public is benefiting from that use. Number two, the nature of the work.

That’s an inquiry looking at are we copying from a primarily factual work or we’re copying from primarily a fictional or fanciful work. The notion here is we probably can use a little more if we’re using works that are primarily factual.

This third factor, the amount in substantiality of the portion used in relation to the copyrighted work as a whole. Two things you should understand from this section. There is no magic number, there is no magic percentage. If there’s one mythology about copyright, I would like to blow up. It’s the notion that copyright lawyers know that percentage you can use and we know just how many words you can use. We just won’t tell anyone else. That’s what people think. But as you can see here, it’s a quantitative concept. The real question is are you using the least amount you need to use to make your point or are you using more.

Indeed, are you using so much more that it affects factor four, what happens when you make that use that you claim is fair? Are people then going to buy your work, instead of the other work that you copied from?

Now as a general rule, when a work is unpublished we tend to look a little more carefully at whether that use is fair, because we believe that the person who authored the work gets to decide when that work is first published. Not a hard line rule, but it does emerge from body of law. Now let’s apply this to some cases.

So here we have Demi Moore, on the cover of Vanity Fair in, I think it was 1993, at that time, the best selling issue of Vanity Fair ever. And then we see Paramount Pictures used, and you can either say the idea or some of the creative elements of that film. Paramount hired its own pregnant woman and did their own photo shoot, but obviously, you can tell by looking at the Paramount pictures photo that it is commenting on the very famous Annie Liebowitz photo. And Annie Liebowitz, highly regarded, very well-known photographer, sued claiming that what Paramount Paramount copied was her artistic choices. The lighting, the orientation of the model to the camera.

And if you read the decision which you can locate if you go to Google Scholar and you put in that citation, you’ll see the court understood it was parody. It was commentary. That the use of that promotional photograph by Paramount doesn’t harm the commercial value of the Annie Leibovitz photo. And this is one of the earlier cases involving fair use, and it was by a commercial entity. So Paramount did not digitize The Vanity Fair photo. Paramount recreated the look. And we see another example of a commercial use and this was a book written by Alice Randall, who’s an African American writer.

She decided that the book, Gone with the Wind, depicted a very Stereotypical view of slaves on the plantation during the Civil War era. And she decided to criticize Gone with the Wind. So she wrote a book called The Wind Done Gone. And she took some of the characters from Gone with the Wind and she changed their background. She took some of the scenes and rewrote it from a different perspective. And SunTrust Bank, the entity that owned the copyright in Gone with the Wind, sued Houghton Mifflin, the publisher of that book.

And if you read the decision, again at the citation on that slide, you will see that the court said that there was actually a great public benefit in taking some of the characters, the settings, and the lines of dialogue from Gone With The Wind and showing it in a very different light from the perspectives of the slaves. And the court found that to be fair use. To use no more than was necessary to engage in criticism and commentary.

The next case involving a book that was created about the Grateful Dead called the Illustrative Trip. We see that certain photographs in which the Bill Graham Archives own copyright. Here’s an example of one of the photographs of a poster in which the Bill Graham archives own copyright. You’ll see how this poster was shrunk to a very small size and used on a particular page in that book. And although the Bill Graham archives had an existing licensing system set up for the use of the posters, and the photographs, and Darling Kindersly, is a commercial entity.

Darling Kindersly said, we’re not reselling your photographs, we’re not reprinting your posters, we are taking that particular poster and we’re creating a new context for it. We are juxtaposing that image with other photographs, certain historical information quotations, commentary indeed, we’re giving the reader a new way to understand that particular photograph at a point in time, at a point in a particular culture, and that was also found to be fair use.

Here’s an example on the left of a photograph taken by Blanch for an airline magazine. And then on the right you see how the feet were used by Mr. Koons, Jeff Koons, who is a contemporary painter and who has been involved in a fair amount of copyright cases. And Blanch said, you used the entirety of my photograph. But the court looked at the artistic use of those images of feet and again you can read the entire decision. What the court basically found that it was an artistic commentary involving feet, food and fetishes and it qualified its fair use.

One case that did not find that the use was fair was Gaylord, who had created this sculptural work in Washington DC, the Korean War Memorial. And a photographer came in one day during the wintertime and took this photo and created this stamp. And the U.S. Postal Service was sued. And it claimed that it had transformed this particular sculptural work by depicting it with snow. But the court concluded, you didn’t give us something new in the way that the previous cases we discussed gave the public something new, a different understanding. But the court said you simply took this particular statue and photographed it with snow.

And so the US Postal Service was found to infringe the copyright that the sculptor held in the artwork.

So lawyers, especially when we are talking about US copyright law, it can be very difficult for our clients to think through what is and isn’t protected by copyright law. And that’s in part because the medium in which we all live, we hear messages from the recording industry, the motion picture industry, the publishing industry. And quite honestly they are telling the public, Falsehoods about what those what copyright covers and what they own and what you can do with materials.

For example how many times do we see in the beginning of a book a statement that says copyright ABC company, no portion of this work may be reproduced by any means or stored in a system and it goes on and on telling us what we can’t do. Those statements are of course false. And clients think they’re true and it’s sometimes hard for clients to understand. We need to have a much more thoughtful and measured analysis of what has the client created? What portions of it are copyrightable and what portions are not. And indeed if it’s not protected by copyright, it may very well be content that the client can use from other sources.

Bullet point number two, an issue I ran into as a practitioner virtually everyday. And that is the use of part time employees, the use of volunteers, the use of contractors, if you don’t have the right contracts With the right magic words in those contracts. The client may not end up actually owning copyright in the content created by volunteers, part-time employees or contractors. A clean room in the copyright world clean room is a technique for setting up a group of people who are going to create a new work for our clients. And you staff that team with people who have not had access to competing works. And that’s because as we see here independent creation is everything in copyright law.

And what this means is even if our clients create a work that is substantially similar to another work out there. If they created it with people who didn’t have access to those competing works it doesn’t matter that it’s virtually identical. This is the opposite of patent law, and it’s the opposite of trade secret law. So, sometimes when we have a client who is going to be creating a competitive product. And if we anticipate that there might be litigation, one of the things we can do is think through with the client, who should be on the team that’s creating this new work, and how do we support their innovation while not tainting them with content from competing works.

Then, of course we want to encourage our clients to register a copyright in their significant works because it enables us, essentially, to pick up a phone, and call the opposing party and advise them that they’ve engaged in infringement, and we’re prepared to go into court tomorrow. And we’re going to get attorney’s fees and statutory damages and may be destruction of infringing goods, unless we negotiate a resolution right now. Indeed, I have had conversations where because I was able to transmit a copy of my clients copyright registration, we’ve literally stopped infringement as it was happening and had checks sent FedEx the next day.

And then of course, with the role of the attorney in counselling the client, we want to think through what happens with clients who have employees who do want to permit certain either entrepreneurial activities and allow employees to have their own business outside of the company business or to moonlight and work for third parties. And of course as client, you have the opportunity to think through how copyright look and support the value that you have embodied in literary works, motion pictures, architectural works.

You’ll understand now that your protection exist immediately you don’t have to wait until the work is registered, all the registration is fast and cheap, and patents which will expire 20 years after the date the patent application is filed under US law. Copyright last 95 years for a corporation, it last a very long time. And this can be particular valuable depending on the industry that you’re in. If you’re in software, probably your life expectancy of the software is much less than 95 years. But if your industry is publishing, and you have literary works, or motion picture, or certain artistic works the copyright might last a very long time.

The other issue to consider is that when someone has copied from even commercial products that is your product design, your packaging, etc. You can use copyright to law to banned the importation into the US and of course as with trademarks, copyright can be license. So you can attach a value to a revenue stream for the commercialization of that content.

So through our copyright segment, you have learned that copyright protects certain expressive content, doesn’t protect other content, and can be a revenue stream for the licensing or the sale of copyrights.