Category: Intellectual Property

On Posting Fair Use Notices in Creative Projects

Imagine someone getting caught shoplifting while wearing a tee shirt that says: “I have no intention of committing petty larceny.” Right? So, when the store presses charges, the defendant’s attorney is probably not going to say, “But the tee shirt your honor! Did you read the tee shirt?”

It’s not a perfect analogy. But this parable of the absurd is not far from the kind of legal prophylaxis I see attempted when creators place fair use notices on work they made using some amount of somebody else’s protected material. These notices, which are often based on reciting the preamble to Section 107 of the Copyright Act, appear in the credits of videos or printed along with written material or posted on websites. “These materials are used under the doctrine of fair use …”

Yeah. Don’t do that.

For one thing, if your use of a work is arguably a fair use, then posting such a notice does not make that defense any stronger. Alternatively, if your use is not likely a fair use, the notice will be no more relevant in a potential infringement claim against you than the aforementioned “no larceny intended” tee shirt would help the shoplifter.

If anything, posting a fair use notice is calling attention to the fact that you have willfully used a protected work without license and that you have not properly considered fair use (because nobody who understands fair use would post such a notice). Hence, the notice may only beg for scrutiny and invite a letter from the copyright owner’s lawyer.

Clearly, I am not seeking to advise the willful or reckless infringer to help him get away with it. But I have seen enough friends and colleagues post these fair use talismans on their creative projects, and then I cringe and rub the lucky rabbit’s foot on their behalf. So, what should you do when using works in a way that you sincerely believe are exempted by fair use?

If Possible, Get a Fair Use Analysis from Qualified Counsel

Ideally, it is best to get advice from an attorney who specializes in copyright law. They may tell you why a use you think would be fair use isn’t, or they may draft a fair use analysis for your project. These documents are not talismanic either—nothing guarantees that a party won’t try to sue another party—but if the attorney knows her stuff, the fair use analysis gives you a degree of comfort that the matter has been thoroughly considered in the proper light. That document would be central to a first response to a copyright owner who might make a claim against you; and if the analysis is well-founded, it may be sufficient to end the matter right there.

DIY Fair Use Analysis

But if getting a fair use assessment from an attorney is outside the budget—especially for a project that is speculative or non-commercial—you can do a basic analysis yourself by following the four-factor test and answering the questions honestly and literally. I stress literally to recommend not getting distracted by the complexities of high-profile fair use cases and legal theories. That way madness lies. Even for the experts. Keep it simple. What follows is my best attempt to keep it simple, though it is far from perfect.

Factor One – Purpose of the Use

To think about Factor One, ask yourself two questions and be very honest:  1) is your use commercial in that you may derive some marketable value from it, even promotional value? 2) does your new expression comment in some way upon the protected work being used?

If the answer is Yes to commercial and No to comment, you are already on somewhat shaky ground for a fair use defense. But what does comment on mean?

If you’re doing the analysis yourself, be literal. Are you criticizing, parodying, or analyzing the original work in some way, rather than, perhaps criticizing, parodying, or analyzing something other than the original work? A big question here is whether the original work is doing a lot of the heavy lifting as part of the new expression you are creating? Here are two typical examples:

In the classic song with new lyrics format, that pre-existing song  provides a lot of the creative expression and is doing a lot of work for you. But did you select it because it’s a famous song and there was some natural wordplay between the original lyrics and your new lyrics? That would be typical, but unless your new lyrics truly comment on the original song itself, the use is likely outside the fair use exception.

A photo in a “news” context favors fair use if the writer or reporter is commenting on the photo itself, or perhaps the photographer. But if the image is an illustration to accompany a story (e.g., about the subject in the image), this is generally a use requiring a license.

A final note about Factor One: An “educational” use does not mean your blog that may be highly informative. It mainly refers to classroom learning. So, if you are not a teacher or instructor using a work for that purpose, don’t assume “educational” applies simply because you are conveying information.

Factor Two – Nature of the Work Used

This is one of the easier fair use questions, which mainly asks whether the work used is informational or creative—like a non-fiction book versus a novel. This is because copyright protects creative expression, but not facts. So largely fact-based works are more susceptible to fair use. If the work you’re using is informational, your use is more likely fair use; if the work used is creative, your use is less likely a fair use. This does not mean, of course, that you may automatically copy an extraordinary amount of an informational work, which brings us to Factor Three.

Factor Three – Amount of the Original Work Used

After Factor One, the amount used question is probably the next most misapplied concept. There is no set amount of an original work (like 10%) that is automatically fair use. The most important questions to ask yourself here are: 1) did you use the heart of the original work (e.g., the refrain in a song, or the most prominent element(s) in a visual work); and 2) did you use only as much of the original as necessary to fulfil the purpose of your new expression?[1]

So, Factor Three may refer back to Factor One and that question as to how much labor is the original work really doing for you within the new expression you are making, and do you really need to copy so much? Imagine removing the protected work you’re using and consider how your project changes. If the honest answer is that the original work is conveying a lot of the overall expression and you have used a lot of that work and you are not commenting on the original, then fair use may not be on your side.

On the other hand, if you can reasonably say that you are using only a portion of the original work—and especially if your expression in some way comments upon that original work, you are more likely protected by the fair use exception. Note: if you are using a fragment of a work, you may also be protected by the doctrine of de minimis use (lawyer for “just a tiny bit”), and fair use may not need to be considered.

Factor Four – Potential Harm to the Market for the Original

This factor has often been confused with questions like how much the unpaid license would be or how wealthy the copyright owner already is or how long the original work has been in the market. These lines of reasoning incorrectly try to measure the harm of a use relative to various assumptions about the value of the work used.

For instance, if the work being used is already worth millions, the assumption may be that it’s tough to do it much harm; or if the work is not already worth a lot in the market, the same assumption may be made for the opposite reason. But this is wrong.

In the simplest analysis, if those other three factors are not looking like your use is a fair use, then at the very least, you are likely depriving the copyright owner a valid opportunity to charge a fee for the use you wish to make. Considering market harm can be this simple.

But more broadly, a court would ask, “What would happen to the copyright owner’s licensing opportunities, if multiple parties were to make uses just like yours?” The key word here is potential, and while it can get complicated in some cases, it is often just common sense. Especially if you are a creator, ask yourself whether you could license your work for the use you intend to make.

If the honest answer to that is at least “Maybe,” then you’re thinking about potential market harm in the right way because that maybe would probably first depend on who’s using it for what purpose and how much of your work they’re using. See what I mean? As a creator, you should be at an advantage considering fair use because you can apply the thinking as if your work is being used by somebody else.

Finally on the market harm question, the argument that your use may increase the value of the protected work(s) through exposure is not a factor in a fair use defense and is a consideration at the discretion of the copyright owner. There may be reasons other than financial why an owner will object to a use, and if a use is infringing, it’s infringing.

There is no question that fair use is a tricky subject, and the above suggestions could be peppered with caveats, disclaimers, and a variety of other opinions. Because the consideration will always be based on the specific facts of each use, nobody can offer general guidance that will necessarily apply to your next intended use of protected work. But the fact-intensive nature of the fair use doctrine is a key reason why those boilerplate notices are meaningless and potentially damaging to your good intentions. So, whatever you do, don’t do that.

[1] Views differ as to how much “purpose” may influence “amount.” But to keep it as simple as possible, if the purpose favors fair use and you copy as little of the original as possible, the more likely you are to have a reasonable fair use defense.

Photo source by: kastaprav

An Open Letter from a Copyright Nerd to About 300 Authors

Dear Authors (“the undersigned”):

It’s not your fault. You mean well. But you are simply wrong to have signed that letter—the one written and orchestrated by Fight for the Future (FFTF), which misrepresents the case Hachette et al., v Internet Archive as an attack on libraries. If I were not a copyright nerd, and I were told that this lawsuit seeks to undermine “traditional library rights,” I probably would have signed that letter, if asked. But the parties calling this a case about library survival are exploiting your good nature and the likelihood that you do not know much about this case. In fact, Authors Guild, in its response this morning states:

“In speaking with authors who signed this letter because they support public libraries, as we do we [sic], they feel misled about the purpose of this letter. For instance, Daniel Handler (Lemony Snicket) disavows the letter and supports the lawsuit.”

The reason I advocate copyright rights is simple enough. I love the arts and firmly believe that a democracy without empowered authors and artists is doomed to become something other than a democracy. As I have been a copyright advocate (and nerd) for just over a decade, I don’t think it would be arrogance at this point to say that I am one of a handful of non-attorney experts on the subject. Not only does my experience encompass a solid knowledge of statutory law, case law, and the history of core doctrines, but it includes many encounters with the tactics of those organizations and individuals who want to strip authors of their copyright rights while disguising that agenda in the rhetoric of democracy, liberty, and defense of the underdog. Internet Archive and Fight for the Future are two organizations baptized in that ideology, and its leaders and comms teams do not scruple to employ tactics indistinguishable from other bullies and liars.

For instance, are you “the undersigned” aware that FFTF engaged in author-shaming on social media? They tagged writers and asked them baseless, rhetorical questions about “helping to sue IA” and whether they really want to keep their books away from “families who can’t afford them.” Surely, you are all keen enough observers of human nature to know that merely tagging authors with such false implications is enough to foster threats—at least one author has received death threats—against some of them. I fail to see how such tactics by FFTF are any more ethical than the kind of ratfucking employed by Trump’s cult to intimidate poll workers, et al. But this is a travesty of the digital age—it is just so damn easy to lie about basic facts in an effort to win an argument in the court of public opinion that one is likely to lose in a court of law.

We have all watched as allegations about “stolen elections” and other staggering bullshit move frictionless at lightspeed through the Twitterverse. But we also breathe a little sigh of relief to see that at least in court, facts must be presented and weighed. And there is a reason why the facts presented in the case against Internet Archive have no resemblance to the allegations made in that letter you signed.

Although Internet Archive has provided us with some wonderful services—I have used its legal archive for research many times—the factual basis for the publishers’ lawsuit is that IA also operates a book scanning and distribution enterprise in a manner that is not allowed by copyright law and which looks nothing like the operation of your library or mine. The specific conduct that predicated the suit was IA’s so-called “National Emergency Library” in March 2020. Citing COVID shutdowns as an excuse, Internet Archive digitally distributed approximately 1.4 million in-copyright books without restriction of any kind—let alone any logic to the titles released, given its stated intent to “help students.”

So, in the simplest terms, no. This is not what libraries do. Real libraries operate within the boundaries of copyright law, which includes several statutory carve-outs written exclusively for those institutions. By contrast, IA asserts theories that are a) unfounded in law; and 2) have been described by Kahle and others as a prelude to changing copyright law in ways that would weaken authors’ rights–and even harm libraries. They have stated, for example, that they see this fight with the publishers as a step toward amending Section 109 of the Copyright Act (first sale doctrine), which is so shortsighted that it would actually dilute the value of real libraries over time. Those of us familiar with Kahle’s agenda recognized the “National Emergency Library” as a stunt—one which may have been intended to provoke the lawsuit now at hand.

It is Mr. Kahle’s consistently stated assertion that copyright rights are little more than a barrier standing between you and your readers. He and his ideological siblings at FFTF, EFF, et al. sincerely and consistently argue that your legal authority to negotiate terms for your labor and talent stands in the way of the public’s access to information and culture. And in the most basic terms, the implications of IA’s conduct—if the publishers were to let it go, or if the court allowed it—would be to substantially undermine the foundation of the only labor right you have as an author. If you believe Mr. Kahle is correct—that the world would work better without those rights—then your signature belongs on that letter. But speaking as a copyright nerd, I assure you that history rejects this view.

During most of the nineteenth century, American publishers hardly invested in American authors for one simple reason:  because the absence of international copyright treaties meant that it was cheaper to reproduce unlicensed copies of European books than it was to publish, and therefore pay, an American author. This is why Walt Whitman advocated for the formal recognition of international copyrights throughout his career, barely living long enough to see the first such American law pass in 1891. Ideologues like Mr. Kahle and his friends talk about a future in which all creative works are unfettered by copyright, but what they don’t mention (or perhaps don’t know) is that we’ve been there, done that. And it sucked.

Another observation I hope I can offer without conceit or offense is that after ten years, I would say that not even the most rights-sensitive authors tend to know a great deal about the particulars of copyright law. And why would you? It’s tedious arcana for attorneys and agents. But this is also why it is dismaying to see names like Neil Gaiman among “the undersigned” while his books and characters are so prominently adapted into motion picture projects and merchandise worth millions.

Because I want to ask whether you are aware, Neil, that the only reason you must be consulted or compensated for those adaptations in the U.S. is Section 106(2) of the Copyright Act? Or that this “right to prepare derivative works” has its origins in a 1907 lawsuit involving the first film adaptation of Ben Hur? Or that the authors’ right to be paid a higher percentage on sales of ebooks than physical books is predicated on this same part of the statute?

So, what I’m saying is that copyright is complicated; you “the undersigned” all benefit from it; authors less prominent than you really depend on it; and you just endorsed the people whose stated agenda is to trash it in ways you probably don’t understand. This is so not about libraries.

Author Bynum Petitions SCOTUS for Remedy to State Copyright Infringement

I have written extensively about state sovereign immunity (a.k.a.,11th Amendment immunity) as it relates to copyright owners’ inability to hold states and state actors liable for recklessly and knowingly infringing protected works. State immunity for violations of federal statutes against persons is a maddening subject—rife with judicial and historical contradictions and implications that reach far beyond intellectual property. Among the many infuriating aspects of the immunity story is that, in theory, persons injured by state violations of their federal rights can pursue “other remedies” when they are barred from suit in federal court. In theory. But not in Texas.

Texas does not equivocate: it rejects any remedy for victims whose intellectual property is blatantly stolen—which even Texas cannot deny happened here.

That statement comes from sports author Mike Bynum’s petition for certiorari to the Supreme Court in response to Texas’s and the Fifth Circuit’s hard-to-follow rationales for denying Bynum any remedy whatsoever for the undisputed theft of his intellectual property. Specifically, Bynum was working on a book about the legendary “Dixie Classic” football game of 1922, during which the “12th Man,” E. King Gill who, though not a member of the team, suited up ready to play because so many members of the Aggie squad had been injured that day.

In my post published at this time last year, I detailed the facts of Bynum’s complaint and the Fifth Circuit’s ruling. In summary, parties at the university’s athletic department copied and distributed Bynum’s unpublished manuscript, removing his name and copyright notice in the process. The material was ultimately distributed to an estimated 350,000 readers—the same audience that would have been interested in buying the book.

With a built-in fanbase and potential long tail interest in the work, the financial damage to Bynum is arguably substantial—but at any valuation, it was surely total. While most piracies cause at least some harm to the copyright owner, TAMU’s wholesale destruction of Bynum’s first publication opportunity effectively killed all financial interest in the author’s work-in-progress.

If that sounds like an illegal “taking” by the state, that’s what Bynum and others think, too—especially when they are barred by sovereign immunity from enforcing their statutory copyright rights. In fact, takings, unfair competition, torts, etc. have long been speculated as alternative remedies in the debate about sovereign immunity. Even the Supreme Court, in affirming that Congress’s Article I powers were insufficient on their own to abrogate state immunity, argued that the possibility of state remedies had “barely been considered,” by Congress.[1] And, as noted in that post last year, the Court, in filmmaker Rick Allen’s case against North Carolina (Allen v. Cooper) indicated that a copyright owner may sue a state entity in federal court “if he can demonstrate a constitutional violation and show that there is no remedy available in state court—which together would rise to a violation of due process.”

But as Bynum’s petition describes, the Fifth Circuit decided that 1) copyright infringement is never a taking because copyright rights are not property; 2) that his due process claim is barred on the grounds that the state could hypothetically provide an avenue for state remedy at some point in the future; and 3) that takings claims are altogether barred by sovereign immunity despite the fact that the Supreme Court has held that the Takings clause requires some compensatory remedy in federal court.

The case law underlying these matters is expansive and, as stated above, tangled in contradictory opinions dating back to the ratification of the Constitution. Every time I return to the subject, I feel like I’m starting over, and I will do readers the favor of not attempting to unravel every nuance in a single post. I suspect the Court will grant cert here because of the constitutional questions presented; because circuit splits are argued; and because of the states’ rights implications.

But one aspect I hope the Court will emphasize in Bynum’s case is the thoroughness with which TAMU took the whole value of his property interest in the manuscript—and even went so far as to remove evidence of his authorship and copyright claim, which is reckless as well as illegal. As the petition cites, the Court in Allen v. Cooper held that “copyrights ‘are a form of property” under the Fourteenth Amendment and that an ‘intentional, or at least reckless’ copyright violation may violate due process rights.”

The holistic nature of the state theft in Bynum may be instructive to the extent that photographer Jim Olive’s case against the University of Houston is otherwise held to inform these considerations. Olive sued the University of Houston for infringement of his aerial photograph, but the Texas Supreme Court held that the complaint was not ripe for a per se Takings claim on the basis that the university had not fully deprived the photographer of his right to exploit his copyright rights in the image in other contexts.

Even if that theory has merit as a Takings consideration (because it is no way to look at copyright), the Supreme Court in Bynum should carefully consider the contrast of that reasoning against the utter destruction to Bynum’s property interest in his book. “TAMU’s copyright violation was flagrant, damaging, and largely undisputed. Texas’s legal position—and the Fifth Circuit’s—is that states simply can steal copyrighted material with impunity. As state copyright violations continue to proliferate nationwide, that warrants this Court’s intervention,” the petition argues.

Indeed it does.

[1] Florida Prepaid v. College Savings (Rehnquist, 1999)

Photo by: Angelstorm