“Which is real, a unicorn or a pony?” my daughter once asked. “Ponies are real, unicorns are made up, and I’m sorry to say you won’t be getting either for your birthday,” I responded. While myths about unicorns and dragons may be easily dispelled, some copyright fair use myths seem particularly enduring. People tend to gravitate towards a few simple (and often wrong) rules of thumb, possibly because the doctrine of fair use is such a fact-intensive inquiry and some of these misperceptions have a nugget of truth at their core. Falling into the trap of relying on any of these mistaken beliefs could lead to serious headaches and expenses down the road.
Fair use is essentially an exception to the broad grant of exclusive rights given to a copyright owner, somewhat like a safety valve that allows use of the copyrighted works of others in limited circumstances. Originally created by the courts, the fair use doctrine has been codified as Section 107 of the Copyright Act. That section sets out four non-exclusive factors for courts to consider when determining whether a specific use qualifies as a fair use. Those factors are: (1) The purpose and character of the use; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use on the potential market for or value of the copyrighted work. How these factors and other circumstances are evaluated and weighed is a case-by-case determination and, in theory, one factor should not overwhelm the rest of the determination. Often it seems that a misapplication of fair use is tied to overemphasizing one of these factors. A few examples arise with some frequency:
It’s Only A Few Seconds of Music
I’ve repeatedly heard a belief that merely by using only a small amount of a work, the use qualifies as a fair use. It is true that one factor that a court considers is the “amount and substantiality” of what’s being used. However, in the context of music being sampled from an existing work and used in either a new audio or audiovisual work, it is almost impossible to rely on a small sample size alone to render its inclusion in the new work a fair use. While courts disagree somewhat as to where the line is drawn regarding sample size, if a listener could even identify the sampled work, it’s almost certainly not a fair use based upon the sample size alone. For example, taking even a few seconds of the theme music for Jaws or Star Wars could take the easily-recognized ‘heart’ of the work. A new use could be fair use for other reasons, for example, criticism or commentary. But, if you’re using a snippet of audio content in a new song, video, game, or other similar work, it isn’t likely to qualify as a fair use merely because you’re only using a very small part.
Ours Is Available for Free
This one comes up over and over again. People often believe that if they aren’t charging for their product, they should have special dispensation to incorporate another person’s work into theirs. This is just not true. While there is a ‘commercial’ or ‘non-commercial’ factor as part of the fair use evaluation, it’s often one of the least-weighted factors. Even non-commercial works distributed for free can be infringements.
We’ve Attributed the Source
If you’re using someone else’s work, then it’s considered unethical to fail to give attribution. In some instances, failing to give attribution can lead to claims of plagiarism or it may be a breach of a license agreement provision. This is different from copyright infringement. The mere act of giving attribution does not make using someone else’s work ‘fair use.’
It’s a Parody
One of the strongest bases for fair use is a use for criticism and commentary, including parody. But there’s a nuance that people often miss. The fundamental question is: what is the target of the parody? For a new use to have a good shot at being a fair use, it must comment on the work that’s being taken. In other words, the copied work needs to be the target of the parody. Accordingly, anyone relying on parody for fair use should be certain that it is commenting on the work that’s being excerpted or imitated.
Everybody’s Using It
A couple of years ago a client asked if they would be allowed to use a song in a promo of their services. It was an extremely popular song, and many different services and products had videos on the internet using the song in the background. The client noted that many of these users almost certainly did not have licenses. However, unlike trademark, copyright can be selectively enforced. The defense “everybody’s doing it” simply doesn’t work. Indeed, the recording industry was confronted with this argument when it started to shut down illegal file sharing sites, and that argument went nowhere. So, while it may be entirely true that others are using a work without permission, that will not substantiate a claim of fair use.
It’s Too Risky
There is an unfortunate bit of a self-perpetuating truth here. Without a bright line rule, it’s often hard to know in borderline cases whether a particular use would qualify as fair use. Courts often consider the general custom and practice in an industry as part of the fourth factor – the effect on the market. If a court finds that in a particular industry something is routinely licensed for a particular use, that weighs against a finding of fair use for that use. So, in each instance that a borderline call is made to get a license instead of relying on fair use, it may make it incrementally harder for the next user to claim fair use.
In sum, fair use a fact-intensive inquiry, and many myths about it get repeated. When considering whether a use is a fair use, be careful to avoid relying on a perceived bright line rule or a general gut feeling. Consider the factors at issue and, if there’s any doubt, run it by your attorney. It’s far less expensive to ask the questions up front, than to try to resolve a lawsuit later.