Copyright Fair Use in Action

Fair use allows for the royalty free use of copyright material.  However, this only applies in limited circumstances.  It’s best to get the advice of a copyright attorney because if you get it wrong, you will have committed copyright infringement.

• Publishing copyrighted work without a license can result in problems.
• Courts determine if there is fair use by examining four factors.
• Fair use is an affirmative defense, meaning that I must be asserted only if a copyright holder proves copyright infringement.
• Even if you have a right to use material under fair use, it may be easier to pay for a license than defend a lawsuit.
• Since the 1990s, many organizations have been trying to expand fair use, especially for those in the arts.

Fair use of copyright material can definitely save you money on licensing fees, but make sure you are correct.

What you don’t know can hurt you

Free Republic, LLC, owner of the political website freerepublic.com, was found liable for copyright infringement in L.A. Times v. Free Republic for reproducing and archiving full-text versions of plaintiffs’ news articles even though the judge found the website minimally commercial.  She held that “while defendants’ do not necessarily ‘exploit’ the articles for commercial gain, their posting to the Free Republic site allows defendants and other visitors to avoid paying the ‘customary price’ charged for the works.”

Factors considered in determining Fair Use

The April 2000 opinion focused on four factors of fair use:

1) “defendants’ use of plaintiffs’ articles is minimally, if at all, transformative;”

2) the factual content of the articles copied “weighs in favor of finding of fair use of the news articles by defendants in this case,” though it didn’t “provide strong support;”

3) concerning the amount and substantiality prong, “the wholesale copying of plaintiffs’ articles weighs against the finding of fair use;” and

4) the plaintiffs showed that they were trying to exploit the market for viewing their articles online and defendants didn’t rebut their showing by proving an absence of usurpation harm to plaintiffs. Ultimately the court found “that the defendants may not assert a fair use defense to plaintiffs’ copyright infringement claim.”

Fair Use is an affirmative defense

The US Supreme Court described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc.  this means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that his use was “fair” and not an infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a “prima facie” case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant’s work borrowed only a small amount, for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense.

Because of the defendant’s burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense. This type of lawsuit is part of a much larger problem in First Amendment law.

A license may be the easiest resolution to a dispute

Because paying a royalty fee may be much less expensive than having a potential copyright suit threaten the publication of a completed work in which a publisher has invested significant resources, many authors may seek a license even for uses that copyright law seemingly permits without liability.

The frequent argument over whether fair use is a “right” or a “defense”  is generated by confusion over the use of the term “affirmative defense.” “Affirmative defense” is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between “rights” and “defenses,” and so it does not characterize the substance of the defendant’s actions as “not a right but a defense.”

There has been an effort to expand fair use since the 1990s

In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in the 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation (“EFF”), the American Civil Liberties Union, the National Coalition Against Censorship, the American Library Association, numerous clinical programs at law schools, and others. The “Chilling Effects” archive was established in 2002 as a coalition of several law school clinics and the EFF to document the use of cease and desist letters. Most recently, in 2006, Stanford University began an initiative called “The Fair Use Project” (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations.

Whether you want to file a copyright registration or you’re involved in a dispute over a copyright or you want to obtain a license, you will want to consult with a copyright attorney who can protect your rights.

Contact an attorney with Veritas Business Law, LLC for a free consultation.