Protection from Chaos, Part IV: Fair Use

This is a repost of the article appearing in my article series, Protection from Chaos, on Loremaster. That series addresses general principles of intellectual property law as it relates to the gaming industry.

Image courtesy of Mount Futurama, though they probably don’t have permission to use it either.

Planet Express Ship: “Bender, don’t lie. I saw you at Elzar’s with those two ladies of the evening. Explain that!”
Bender: “Well, I love a challenge. Um… no… I’ve got it. I’m gonna be completely honest with you, Planet Express ship. Those women you saw me with were my accountants.”
Planet Express Ship: “Your accountants? Oh, I would dearly love to believe that were true . . . so I do.”

If I sound annoyed in these articles, it’s because I am. Although my goal is to help everyone understand copyright law and stay out of trouble, my inspiration comes from being inundated with unknowledgeable statements grounded in nothing more than wishful thinking. Example: Fair use.

If you surf the Internet, you can get all sorts of misinformation from people that really want to believe that it’s okay to commit a certain act because they really wish it were true, just like the Planet Express ship. In the same way that they tell themselves what they want to hear, they’ll tell you what you want to hear, so you’ll be convinced it’s a fair use no matter what a level-headed, knowledgeable attorney tells you. What the latter will tell you is that fair use is determined on a case-by-case basis referencing four statutory factors found in 17 U.S.C. § 107:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

Because all of these cases require a detailed analysis of the facts, and a set of four vague factors will determine whether a use is fair, no sane attorney will give you a definitive answer as to whether your use is fair, and the attorney’s best guess will come only at a price. Here’s what I will tell you though: It’s dangerous to rely on fair use even if you’re convinced your use of copyrighted material is fair.

Fair use is what’s called an “affirmative defense.” Affirmative defenses fall into two categories: excuses (e.g., insanity), and justifications (e.g., self-defense). Fair use is a justification for copyright infringement, claiming that your infringement was okay because there was a good reason for it, just like when a murder suspect claims the homicide was okay because it was performed in self-defense.

Did you catch that? In order to claim fair use as a defense, you must first admit that you committed copyright infringement, which not only makes you instantly liable civilly (and maybe criminally as well) by default, but you’ve also now shifted the burden to yourself to prove your justification is valid. So, this is basically what you said:

I did it! I’m liable civilly for stealing from someone else, and likely owe a ton of money to them. Also, there’s a small chance that I’m also liable criminally, so I might be taking up harmonica lessons soon. Oh, and did I mention that I kind of sort of think I might be right?


Think you can live with this? Well, it gets worse. Because of this risk, there are relatively few cases on which you can rely for further guidance. So, if you think you can predict whether your use is fair, you’re kidding yourself . . . which is kind of my point. (Note: There are some relatively well-settled examples of fair use, but even those aren’t absolute, so some risk remains.)

Now, imagine that you’re the murder defendant in the hypothetical homicide case I referenced above. How comfortable would you feel relying on a self-defense justification in which you have to prove that you were right despite little legal guidance on the matter?

Oh, but Rob. Isn’t that situation completely different?

Well, yes, it is. In a legitimate self-defense case, you had no choice but to commit the homicide first and worry about the jury later. Otherwise, you (and perhaps others) would be dead. In a fair use case, though, you have a choice. You can choose not to commit the (admitted) copyright infringement and just pay a few bucks to the author. Are you going to run out and pick a fight with some guy, hoping to be given the chance to commit a justified homicide? Seems kind of reckless, doesn’t it?

Yes, yes, Rob, but unlike homicide, if we don’t raise the issue, we’ll never formulate the boundaries of fair use, so it’d be like never giving the law the opportunity to define self-defense.

Absolutely true, but did you read my first three articles in this series? I’m glad you’re willing to take one for the team by forking out big bucks for your legal defense and taking the risk of civil and criminal liability. Huh? You aren’t? Then buy the damn book and leave the pioneering legal efforts to Luther Campbell, et al.

Luther Campbell was the defendant in the fair use case most cited by law school professors. He was the leader of 2 Live Crew and penned an obscene version of Roy Orbison’s Pretty Woman (clean version by 2 Live Crew here: In Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the Supreme Court held that the song was a fair use because it was a parody of the original. I can assure you that any case going to the Supreme Court will be expensive, and the other side isn’t going to give up until they at least ask the Supreme Court to hear the case. Even if you win, you’re in it for the long haul. If you lose, you’ll wish you were in it for the long haul.

So, remember kids, if you ever claim fair use, you just admitted that you infringed a copyright, and as we’ve covered before, that’s an expensive admission even if you wind up winning. Considering that, for many of you, your wishful thinking is grounded in an unwillingness to spend a few extra bucks on your hobby, I’d say you should think twice before running to the banner of fair use.

Follow me on Twitter @PropertyAtty


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Filed under Constitutional Law, Copyright Law, Free Speech, Intellectual Property Law

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