I was recently approached by an entertainment client with a question about fair use and infringement.  This is an issue that comes up for my filmmaker and music clients pretty regularly.  With that in mind, we thought this brief article would serve as a good primer for those new to this topic.

What is “Fair Use”?  (The Legal Mumbo Jumbo)

To understand the concept of “fair use”, you first have to understand the basics of copyright law.  The owner of the copyright gets complete dominion and control over her copyright – in other words, a near monopoly over the right to copy.

All copying, distribution, public performance, or derivation of a protected work (a motion picture, a book, a work of art, a photograph, a song, a website, etc.) without authorization of the copyright holder is infringement (unless the copying is so trivial that it is de minimis and does not need a fair use defense).  Fair use is an exception to those rights and is a defense to what would otherwise constitute copyright infringement.

The Copyright Act allows limited “fair use” of protected material without the owner’s permission.  Such transformative, fair use of copyrighted works (i.e., use that is not infringing) includes criticism (or parody), comment, news reporting, teaching, scholarship, or research.

For copyrights, courts balance these four, non-exclusive factors from Section 107 of the Copyright Act in their “fair use” analysis:

  1. The reasons for and manner of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount that is being appropriated from the copyrighted work in relation to that work as a whole; and
  4. The impact, if any, on the value of the work copied.

Filmmakers and other artists should always try to get permission from the rights holder to use any film clips, music, lyrics, images, art work, books, etc. in their projects.

What Constitutes A Fair Use?

The Copyright Act does not provide specific guidance on what constitutes a fair use and what does not.  For example, there is no provision in the Act stating that copying two sentences from a poem is a fair use but copying three is infringement, or exactly how transformative a parody must be to qualify for a valid fair use defense.

Courts have noted that a user of copyrighted material should look to the four factors from the Copyright Act to determine if the use is indeed “fair”.  Uses such as research, news reporting, commentary, and criticism or parody tend to qualify as non-infringing, fair uses more than other types of uses.

Use of a Copyrighted Work in a Parody.  The use of the original work in a parody is protected as fair use under the Copyright Act because parodies are generally considered transformative uses for the purposes of criticism of the original work.  Parodies do not need to be humorous or made from well-known works.

Use of a Copyrighted Work in News.  An exception for news reporting (including use in documentaries) is allowed, provided the fair use adds some transformative value that comments on, criticizes, serves a different purpose than or otherwise adds something new to the original work.

When Should You Get Permission to Use the Work?

Filmmakers and other artists should always try to get permission from the rights holder to use any film clips, music, lyrics, images, art work, books, etc. in their projects.

Lawsuits for copyright infringement are burdensome and expensive.  If sued, the legal fees and damages could be catastrophically high which explains why distributors (and their lawyers and insurers) will require filmmakers to secure releases or permission from the original owner of the work.

The one bright spot for an artist sued for infringement is the provision of the Copyright Act that awards attorneys’ fees to the prevailing party.  For defendants, courts tend to look at the following factors to determine if an award of fees is appropriate: (1) the frivolousness of the claim brought by the copyright holder; (2) the motivation of the plaintiff; (3) the reasonableness of the claim; and (4) the goal of deterring frivolous claims.

On the flip side, courts will analyze if the factual and legal arguments made by the defendant were unreasonable and frivolous.  If the court finds that they were, fees could be awarded to the copyright owner / plaintiff.