Understanding Copyrights: Part 2 - Fair Use : Business & Marketing Tutorial

FAIR WARNING ABOUT FAIR USE:
Fair Use provisions are NOT clear cut nor are they always simple to apply. People who argue that Fair Use provisions are simple and cut-and-dried are ignoring the fact that when Congress overhauled copyright laws with the Copyright Act of 1976, they purposely left the law vague and subject to the interpretation by the courts on a case-by-case basis.

Some argue that Fair Use provisions are clear, they are not. The provisions which exist are by their very design, purposefully vague. If you rely on popular opinion as your basis for determining if your use meets the legitimate criteria for Fair Use, chances are, you will find yourself on the wrong side of the law and subject to litigation.

And when I say litigation, understand that the courts are usually very aggressive once a case comes before the courts and an average settlement is usually in the $150,000 range and up for each infraction in cases of willful infringement. Claiming ignorance of the law will offer you no excuse, nor will ignorance shield you from the fines imposed under the law. And you can add to these costs, your attorney's charges. With fines like these, it's simply safer to not play in minefields.

Why is Fair Use such a mine-field? Let's look at what it is and what it isn't...

THE FOUR PILLARS OF DETERMINING FAIR USE:
When beginning the process of determining Fair Use, the law hinges on four general points which as stated earlier, have been left purposefully vague -- chalk it up as a victory for the lawyers. These four points are:

What is the type or character of the use?
What is the nature of the copyrighted work used?
How much of the copyrighted work will you be using?
How will your use effect the market for the original or for permissions if this use were to become widespread?

CHARACTER OF THE USE:
When beginning the process of determining Fair Use, you must begin with determining the type or character of your usage. Are you a NON-PROFIT or EDUCATIONAL entity? Is it for PERSONAL use? Or is it for COMMERCIAL use? Will the copyrighted material be used in a PARODY or CRITICISM? Is it being used in a NEWSROOM or PRESS setting? Will the copyrighted work be MODIFIED or used in some other TRANSFORMATIVE way?

Users in green (in the above paragraph) find latitude and flexibility in the law, though even they do not have guaranteed rights to copyrighted material under Fair Use provisions. And contrary to popular opinion, nonprofits, educational and personal use are not the most apt to be protected under Fair Use laws. The uses most likely to be protected are those used outlined in blue above. Users in red, need to be especially careful about trying to claim Fair Use in regards to copyrighted materials -- this, as commercial users will nearly always lose any claim to Fair Use.

When the Supreme Court ruled that the "transformative factor" was critical to substantiating Fair Use. If you used copyright material under a claim of Fair Use, did you transform it in some way and add meaning or insight previously not available in the original version?

NATURE OF THE WORK USED:
In general, if your use is for a fact-based work that contributes to the public good or increases general knowledge, you have a greater chance of claiming Fair Use. If your usage is to create something which is more likely to benefit your own wallet and bank account, the courts will be fair less likely to hear and agree with your claim of Fair Use.

If you are claiming Fair Use when using materials from a factual source such scientific works or biographies or other such fact-based works, you have a far greater chance of claiming Fair Use than if you were to use materials from an original work like a screenplay, a song or a TV show.

The intent of this clause is to protect the public's right to knowledge and factual works that benefit the public, while protecting the rights of those whose works are copyrighted due to the original work that is placed into these works.

Oddly, you have less chance of claiming Fair Use in the case of unpublished works than you do in the case of works which have been previously published. If you know of a work that is not yet published and you use it, you will almost always fall prey to copyright infringement should the original author have means and proof that the work is originally their own. This, as the courts recognize the author's rights to pick the first public display of their work.

HOW MUCH OF THE COPYRIGHTED WORK WILL YOU BE USING?
The more of a copyrighted work that you use, the less you will be able to claim Fair Use. While there are exceptions to this, this is the general rule. Another general rule would be that as outlined in previous points, non-profit or educational use of a copyrighted item will more likely enjoy a legitimate claim to Fair Use -- and to also enjoy a larger piece of a work to be used -- than would be allowed to a for-profit venture or product created by a company or individual for monetary gain.

The courts also recognize that the "essence" of a work may be a very small part of a copyrighted work and will likely protect the copyright holder's rights should you try to use that essence in your own work. Musicians call the memorable recurring passage the "hook" and writers may call the most important phrasing in their book, the "hinge" as the story turns on this small item -- using the "hook" or the "hinge" (while it may constitute a very small part of the whole) is likely to lead to trouble. The exception to this rule is in the case of parody, which the courts have protected.

HOW WILL YOUR USE OF EFFECT THE MARKET FOR THE ORIGINAL OR FOR PERMISSIONS IF THIS USE WERE TO BECOME WIDESPREAD?
Here is a simple Rule of Thumb to consider: If your use causes any kind of financial harm to the original copyright holder, even if your product is in another market niche altogether from their original work, you are likely to run afoul of the law claiming Fair Use. This is because it will be an easy case for the original copyright holder to make, and prove, a claim that while they may not yet have been in that market, they have been exploring other avenues and likely may come across this market in the near future. Your actions have hurt those chances and have cost them both money and opportunity.

This very kind of case was ruled on by the courts who ruled against a sculptor who used a copyrighted photograph as the basis of their work. In another case, an animator ran afoul of the law when they used a story as the basis of their work without the author's permission.

The courts tend to be more lenient, though it is not always the case (and so it is always best to seek permissions) in the case of works that are out of print or are not available. They also tend to be more lenient in cases wherein the copyright holder is not known or after certified attempts to find them, cannot be found.

SUMMARY
When determining Fair Use, the courts tend to ask the first three questions:

What is the type or character of the use?
What is the nature of the copyrighted work used?
How much of the copyrighted work will you be using?

Only after ascertaining the legitimacy of the first three points will the courts then weigh the fourth question:

How will your use effect the market for the original or for permissions if this use were to become widespread?

After weighing points one through three, then they will consider the fourth point. If points one through three show that you are legitimately using a copyrighted work under Fair Use, then in most cases, even in those wherein point four may show some financial damage, the courts will more than likely not throw out the weight of evidence of the first three points in favor of going with the fourth point of law. But if points one through three show that your use is not in accordance with the principles that underscore the true intent of the Fair Use provisions, then they will use point four to consider the scope and amount of damages.

Still in doubt? Ask for permission.

...oh, and seek legal advice -- as I said in the disclaimer at the beginning of this article, I'm no lawyer and this is not intended to be the last word on the subject or to be taken in lieu of legal counsel. This is merely to give you some sound basics in understanding that Fair Use provisions of the law are not as simple as many claim when posting to the Creative Cow forums and elsewhere.

I hope that this helps.

-- Ron Lindeboom

To discuss this or other business-related questions,
please visit Creative Cow's Business Practices & Marketing forum.

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