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
