Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.
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.”
— Futurama, Love and Rocket.
Fair Use as an Affirmative Defense
As I’ve discussed, appealing to fair use is a risky proposition, but one that’s often trumpeted by those engaged in the same wishful thinking as the Planet Express ship. Nevertheless, it’s often the only option, and sometimes it’s a good one. So what exactly is it? As a “justification,” it’s an admission of the underlying, generally-illegal behavior, but then a claim that it was legal to engage in that behavior because the facts fit within an exception to the general rule of liability. That is, “Sure, I copied the copyrighted work, but it’s okay, because my copying is an exception to the general rule on infringement.” Because fair use requires a detailed analysis of the specific facts of a case, and a set of four vague factors will determine whether a use is fair, you’re not going to get a specific opinion on a specific case here or anywhere else on social media. Moreover, sometimes the only advice you can get from an attorney will be their best guess, and that will come only at a price.
But enough pontificating.
Fair use is determined on a case-by-case basis referencing four statutory factors found in 17 U.S.C. § 107 (which in turn is legally grounded in the Free Speech clause of the First Amendment):
- 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.
As an affirmative defense, the analysis assumes that there’s been copying, or at least the creation of a derivative work (i.e., a new, original product that includes aspects of a copyrighted work).
The Purpose and Character of the Use
The first factor examines how the copy or derivative work is being used. If it’s sufficiently “transformative,” then the use will be deemed fair. Whether a use is sufficiently transformative depends on whether it “merely supersedes the objects of the original creation, or whether and to what extent it [alters] the original with new expression, meaning, or message.” Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). Put another way, copyrights protect expressions of ideas. Is the derivative work expressing a completely different statement than the original did? In the case of Campbell, the answer was yes. 2 Live Crew’s parody of the song, “Pretty Woman,” wasn’t a song about a pretty woman, but rather a critique on how we evaluate beauty in modern culture. Other ways in which a derivative work could be transformative are where they’re used to produce something educational, or not-for-profit. It’s important to restate that the question is whether the use is sufficiently transformative. A Harry Potter encyclopedia combining Harry Potter material into a single volume was deemed not sufficiently transformative, and thus the fair use defense failed. Warner Bros. Entertainment, Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008).
The Nature of the Copyrighted Use
Simply put, the question is whether the work consists mainly of facts or is creative. Fair use permits copying of fact-intensive works more often than purely creative ones.
Amount and Substantiality
If only a small portion of the work is infringed, the use may be deemed fair. As with the entire infringement and fair use analysis, the definition of “small” must be determined on a case-by-case basis. See, e.g., Sandoval v. New Line Cinema Corp., 147 F.3d 215, 218 (2d Cir. 1998) (finding the use of copyrighted photographs in the movie, Seven, to be fair where the “photographs appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable”).
The Effect on the Potential Market
This factor assesses the likelihood that the author of the original work will experience a loss of sales due to the infringement. Obviously, if one were to make copies of a book and sell it themselves, that would hurt the authors sales. However, if the infringer is giving away the copies free of charge, the author’s sales would still be hurt. While the question of generating revenue off the infringement is relevant elsewhere in copyright law, it doesn’t have much of an impact on this fair use factor. Giving away free copies can easily affect the potential market.
These are vague standards requiring far more detailed analysis than can be given here, and while there have been plenty of cases that have addressed them, they’re still applied on a case-by-case basis to specific facts. It’s often difficult to predict how a Court will decide a specific case, but even if one could make a reasonable prediction, the fight is often worth fighting for the copyright holder. That should factor into any decision made with respect to copying.
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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with First Class Title, Inc., a Maryland title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.