by Intellectual Property Attorney Bill Honaker, the IP Guy
Copyright law is complicated, and often misunderstood. The concept of Fair Use is often asserted by someone accused of infringement.
Fair use is a defense to copyright infringement and, when properly applied, can allow use of copyrighted works without first obtaining permission from the copyright holder. The fair use doctrine states that the limited use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, parody or research is not considered copyright infringement. The doctrine is based on the idea that certain uses of copyrighted works should be allowed because it’s in the public interest. In other words, it allows the public to make use of copyrighted works for certain purposes, even if the copyright holder does not approve.
In today’s Internet world, copying has never been easier. All you need to do is select, copy, and paste. But getting caught is also easier than ever. There are numerous tools available to catch copiers. Free, or very inexpensive sites are available online where you can upload articles or images, and the search engine will look for matches to find copiers. And the law is on the side of the creator. If you’re caught, the copyright owner is entitled to your profits, or their lost profits, whichever is greater. If the copyright is timely registered with the United States Copyright Office, the copyright holder can elect statutory damages of $750 to $30,000 per infringement, and up to $150,000 for willful infringement. And the court is encouraged to award attorney fees to the winning party.
The courts weigh four factors in determining fair use:
1) the purpose and character of the use,
2) the nature of the copyrighted work,
3) the amount and substantiality of the portion used, and
4) the effect of the use on the potential market for or value of the copyrighted work.
To determine the purpose and character the court will typically look at whether the use is for commercial or non-commercial purposes, as well as whether it is transformative, or simply a copy of the original work. Transformative uses are generally more likely to be considered a fair use than uses that are simply copies of the original work. The nature of the copyrighted work looks at whether the work is factual or creative. Factual works, such as news reports or scientific data, are more likely to be considered fair use than creative works, such as novels or photographs.
The amount and substantiality of the portion used looks at how much of the original work was used and whether the portion used was the “heart” of the work. If the portion used was the “heart” of the work (like the melody of a song) the use is less likely to be considered fair use. The final factor considers the effect of the use on the potential market for or value of the copyrighted work. Courts will typically look at whether the use negatively impacts the potential market for or value of the copyrighted work. If the use has a negative effect, it’s less likely to be considered fair use.
Because fair use is a defense, the accused infringer has the burden of proof when convincing the Court. Ultimately, fair use is complex, and each situation must be evaluated case-by-case. Courts will weigh all the factors to determine if a particular use is a fair use. Additionally, fair use is a fact-specific inquiry, meaning that the outcome of any case will depend on the facts of that case.
The complexity and uncertainty of Fair Use is illustrated in the case of Brammer v Violent Hues Productions, LLC. Russell Brammer is a photographer who sells and licenses his photography. He took a picture of a city scene at night. He sold and licensed that image to others. Violent Hues copied the image online and posted a cropped copy of the image on its website to promote a film and music festival. Brammer sued.
The District Court ruled in Violent Hues favor on all four factors. Brammer appealed, and the Appeals court reversed the finding, ruling the exact opposite on all four factors. This illustrates the complexity and uncertainty of this defense when two courts can come to completely different conclusions.
Depending on your use of copyrighted works, fair use may give you freedom to use. But because of the potential damages and the complex nature of fair use, you need the advice of counsel before using. This is not a defense that you want to assume applies to your situation.
About the Author:
Bill Honaker, “The IP Guy” is a former USPTO Examiner, a partner with Dickinson-Wright, and author of the forthcoming book, Invisible Assets – How to Maximize the Hidden Value in Your Business. To download a sample chapter, click here.