Who’s Afraid of Fair Use? Is Fair Use a Right and Not a Defense Any More?

There’s a point in evolution when you can say that over evolutionary time Something Big has happened — or even mutated into something dramatic. I believe this week is one such time.

Pretty much any copying, distribution, public performance, or derivation of a copyrighted work (a book, an photo, a motion picture, a song, a website, etc.) without authorization of the copyright holder is copyright infringement. (I say “pretty much,” because some copying is so trivial that’s it is de minimis and doesn’t need a fair use defense. There are also a few specific exemptions from absolute copyright protection with respect to certain photocopying by libraries and for other special situations.) Dominion over a copyright is what a copyright holder gets – a near monopoly over the right to copy. To say it another way, the word “copyright” means it just the way it sounds.

The big and most intriguing exception to copyright is called fair use. If an area of copyright law can be seen as sexy, this is it. It’s an “equitable” doctrine – it’s all about fairness. That judicially-created doctrine is codified in the Copyright Act today. It’s a defense to copyright infringement. Think about that. If someone claiming a fair use has good reason to worry about defending itself from a lawsuit, what’s a would-be fair user to do? Isn’t it a reasonable fear to have that a warlike copyright holder will swoop in with a lawsuit in federal court? Well, yes. It states the obvious to say that those kinds of lawsuits are burdensome and expensive.

In SOFA Entertainment, Inc. v. Dodger Productions, the defendants used a seven-second clip of the Four Seasons musical group from the classic old TV variety series, The Ed Sullivan Show, in Jersey Boys, the stage musical about the Four Seasons. The copyright owners of the video clip sued. On March 11 the Court held that this use was fair.

Circuit Judge Stephen S. Trott, who wrote for the 9th Circuit court said that the plaintiff is “mistaken.” “The Court went on to say, “The defendants used the clip in Jersey Boys, their musical about the Four Seasons, to mark a historical point in the band’s career. The panel held that this was a fair use because by using the clip for its historical significance, the defendants had imbued it with new meaning and had done so without usurping whatever demand there was for the original clip.”

What’s more, the court awarded attorneys’ fees to the defendant not only because it won the case but as a warning to other copyright holders about bringing such lawsuits when they don’t recognize fair use. The Court said, “Moreover, we agree with the district court that ‘lawsuits of this nature . . . have a chilling effect on creativity insofar as they discourage the fair use of existing works creation of new ones. The fair use doctrine is an integral part of copyright law precisely because it gives authors ‘breathing space within the confines of copyright’ to build upon their predecessors’ works.”

To place the worries of the fair user in context, there is no specific situation described in the fair use section in the Copyright Act so as to provide specific guidance on what a fair use is and what is not. No chart saying quotation of three sentences from a book are a fair use – and copying four is infringement. No chart on exactly how transformative (or how funny) a parody must be to qualify for a valid fair use defense.

The fair use law says that a potential fair user should look to at least four factors (such as whether the use is for not-for-profit educational purposes; the nature of the work; how much the user is appropriating from the work in relation to work as a whole; and the effect of the use upon the potential market for, or value of, the copyrighted work) in order to determine if the use is indeed “fair”. It’s true that several kinds of uses such as new reporting, commentary, etc. are called out as being more susceptible to a rightful fair use than others. Courts treat parody similarly. But the real guide through the fair use forest is found in many court decisions from the various federal courts in different jurisdictions.

In the ongoing Lenz case (summarized here) a federal district court says that Universal Music should have considered (and accurately considered, too) the possibility of fair use before the Digital Millennium Copyright Act “takedown” notice seeking removal of a video from YouTube that included Prince’s “Let’s Go Crazy” was sent by Universal Music. Earlier cases found use of John Lennon’s song, “Imagine” in a documentary motion picture to be a fair use.

Many in the old guard of copyright law, licensing, and copyright-industry business affairs departments might not like this news because it may well embolden use of their properties without authorization. They will say it sends the wrong signals. They won’t like anyone saying this out loud. I have mixed feelings, believing as I do firmly in the rights and integrity of authors and other copyright stakeholders. But, the “rights” of fair users need protection, too.

Copyright is increasingly about a balance between copyright stakeholders and consumer and reusers/remixers. Fair use is one battleground. Pro bono copyright lawyers, especially the Stanford Fair Use Project, have given fair users a real chance to fight – and win – in court. Previously, potential fair uses really did face a kind of chilling effect because, if sued, the legal fees and damages could be catastrophically high.

The wheel has turned and the tide has changed, pick your metaphor. Argue against the trend. Like it or don’t like it. While there is no definitive rule saying that a brief use of a video clip or a song bearing some resonance and relevance to the topic of the new work may be used, there is a strong trend in that direction. Judgment of the legality of the use of brief clips in entertainment and documentaries may be at a point where a finding of the validity of a fair use claim is more likely than a finding of infringement. This is new territory and if there ever were an area where a thorough copyright law and factual analysis for risk management is necessary in particular situations, this is it.

The playing ground has begun to level. Now copyright owners should realistically fear that the provision in the Copyright Act awarding attorneys’ fees to prevailing defendants would more frequently be applied against them. Copyright owners should feel just a bit chilled, too.

Yet fair use is for everyone in the copyright communities, especially those who transform pre-existing materials into new works with minimum copying of those materials. Big media outlets rely on fair use frequently in their businesses, just as do producers of the silliest of YouTube videos.

In terms of those of us who clear use of clips for use in motion pictures, television, commercial venues, etc. –- and litigate copyright cases — fair use may not just be a possible principled option in lieu of obtaining a license in selected situations. Fair use is beginning to act and feel like a right.

In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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