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Articles
AN OVERVIEW OF THE FAIR USE DEFENSE
By Barry Slotnick, Loeb and Loeb LLP
What is "fair use"? Fair use refers to a defense in a copyright infringement lawsuit. If a defendant has copied all or part of a copyrighted work without permission, and the owner of the copyrighted work files suit against the defendant for copyright infringement, the defendant can argue that his use of the copyrighted work was a fair use.
The fair use defense is spelled out in Section 107 of the Copyright Act. This section of the Copyright Act recognizes that there are certain uses of a copyrighted work which should be allowed, even if they involve using a copyrighted work without permission. Section 107 lists several examples of fair use including criticism or comment, news reporting, teaching, scholarship or research, and parody.
Because fair use only comes up in a copyright infringement lawsuit, it is up to a court to decide whether a specific use of a copyrighted work should be labeled fair use. To help courts determine when a use should be considered a fair use, section 107 of the Copyright Act lists four factors that courts must consider when a defendant claims its use of a copyrighted work is fair use. Each factor must be analyzed and weighed by a court; no single factor will determine whether a use is a fair use or not.
- Purpose of the use. If a defendant has copied part of a copyrighted work and intends to use the new work for educational purposes - rather than for a commercial purpose - this weighs in favor of finding the use a fair use. However, even a commercial use can be found to be a fair use depending on the other three factors. For example, a movie advertisement featuring a naked, pregnant man in a pose identical to the Vanity Fair cover with a naked, pregnant Demi Moore was found to be a parody and a fair use when all four factors were considered by the court.
- Nature of the copyrighted work - fact or fiction? If the work that was copied was factual, such as a telephone directory, a court would likely say this factor weighs in favor of a finding of fair use. Factual compilations are generally entitled to less protection under copyright law than original works.
- Amount of copyrighted work taken. This analysis examines how much of the copyrighted work was taken (not how much of defendant's work consists of copied material). Courts will consider whether the defendant has copied "the heart" of the copyrighted work, even if the defendant only copied a small portion of the copyrighted work. The amount that is copied will also be considered in light of what the purpose of the new work is. For example, courts have recognized that a defendant can copy a significant amount of a copyrighted work in order to create a parody of the original work.
- Economic effect on work that was copied. A court will look at whether the new work that has copied part of the copyrighted work will have an effect on the market for the original work. The easiest case is where the infringing work competes with that of the original work and would result in lost sales for the plaintiff. Harder cases occur when the infringer makes use of the original work in a way that the plaintiff has not. Although actual harm or future harm (such as lost sales) need not be shown, the plaintiff does need to show that there is some meaningful likelihood of future harm. In a famous Supreme Court case involving Sony's betamax recorder, the plaintiff (the owner of movies that were broadcast on television and were being copied using the betamax) was not able to show that recording movies broadcast on television for watching at a future date was likely to economically hurt the movies being copied.
Examples of Successful and Unsuccessful Fair Use Situations
1. Film
- Sandoval v. New Line Cinema Corp. The defendant's movie contained a scene that showed the plaintiff's photograph in a fleeting, obscured and almost undetectable manner. The court ruled that this was a fair use.
2. Print
- Basic Books Inc. v. Kinko's Graphic Corp. The defendant's copying of materials for inclusion in college course packs that were sold to students was not found to be a fair use.
- Ty, Inc. v. Publications International, Inc. The defendant published books for collectors of beanie babies and the books contained pictures of the toys. The court held such use was a fair use because the books were guides to collecting beanie babies and contained commentary and criticism.
3. Parody (courts generally like parodies)
- Berlin v. E.C. Publications, Inc. Mad Magazine printed funny lyrics "sung to the tune of" a particular song but didn't print the music. The music publisher sued; the court accused the publisher of losing its sense of humor and found that the use was a fair use.
- Campbell v. Acuff-Rose Music, Inc. The Supreme Court found that the band 2 Live Crew's parody of the Roy Orbison song "Pretty Woman" was a fair use, even though the new song was sold commercially.
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