Copyright Fair Use – Do I Really Need To Clear That?

Video Presentation

I love it when technical law meets mainstream news because it makes an otherwise dry legal topic (like DMCA, Fair Use) much more relatable to the public.

After all who wouldn’t be more interested in hearing the legal details if the story involved Prince and dancing YouTube babies?

Let me explain further.

This perfect storm recently happened when the U.S. Court of Appeals for the Ninth Circuit ruled in a case called Lenz v. Universal Music Corp. et al. that a famous YouTube video featuring a baby bobbing his head to Prince’s “Let’s Go Crazy”, should not have been snatched down by Universal (I’m sure you’ve all seen that pathetic YouTube snowed out screen with the unhappy face that appears when a video is removed).

There is nothing more technical than the Digital Millennium Copyright Act (DMCA) and there is nothing more mainstream than cute baby videos and, of course, anything involving Prince!

This is a major case in which the court basically ruled that, before a content owner requests/demands an Online Service Provider (ISP or OSP for short) like YouTube to take down a video or other content, the content owner must have first considered whether the unauthorized use is “fair use”.

This is the first case to address the Fair Use issue and is going to have wide reaching ramifications.

Especially for those companies that assign some intern to do nothing all day long but look for infringing videos on YouTube and issue takedown notices. (No offense intended to interns…I use to be one of those grunts).

For those of you that like the legal background, let’s start there.

Note: I have an updated video presentation on Fair Use at the bottom of this post

 

What is DMCA?

In general, the DMCA protects OSPs against copyright infringement liability if they comply with certain content takedown rules. So when an OSP, like YouTube, allows users to upload content for other users to view, there is a risk that a user will upload unauthorized copyrighted materials.

If this happens, an OSP is put at risk of committing copyright infringement and has a good chance of getting sued since it is usually the deep pocket in the incident. This is what happened before the DMCA implemented safeguards for OSPs.

The DMCA created a process that allows an OSP to avoid liability if it expeditiously removes copyrighted material when notified by the copyright owner of the content. The notification is known as a “takedown notice” and instructions on how to issue one is usually located in the Terms of Use section of the OSP’s website.

In the Lenz case, Stephanie Lenz uploaded to YouTube a 29-second home video of her children dancing to the song “Let’s Go Crazy” by Prince. She titled the video “Let’s Go Crazy’ #1,” and in the video she asks her 1 year old son if he liked the song. The son cutely bobs his head up and down. Adorable, right?

Well, Universal, who was responsible for enforcing Prince’s copyrights, didn’t think it was adorable.

Universal determined that the video of the little Prince fan was an infringing use based on its standard company criteria. It sent a takedown notice to YouTube, and the video was removed from view. Lenz then sued Universal, alleging that it had misrepresented the infringement.

Lenz argued that Universal’s criteria was literally not fair, meaning it did not consider the Fair Use Doctrine. You remember the Fair Use Doctrine, right? If not, here’s a refresher so that you can really understand the importance of this case.

 

What is Fair Use?

Copyright law grants the author of a work an exclusive right of usage, which bars other persons from using the work without permission from the owner of the copyright.  Fair use is an exception to that right.

The courts previously lead the legal community to believe that fair use could only be used as a defense to a copyright infringement claim, but the Ninth Circuit flipped the script on this notion (We’ll talk about that more in a minute).

When determining whether or not a usage is fair use, courts will consider certain factors, listed below.  None of these factors are determinative on their own, and how much weight the court assigns to each will vary by their relevance in each case.

Even if one factor weighs completely in favor of one side, all four factors must balanced against each other before a decision can be reached.

The factors are:

1. PURPOSE AND CHARACTER OF USE

Often the most influential factor, this component focuses on the very heart of copyright law: As defined in Article I of the US Constitution, does the work “promote the Progress of Science and Useful Arts” through the addition of some new expression or meaning?

Put another way, is the work purely derivative, or is the use transformative?

A derivative use favors the party claiming infringement, since the right to create derivative works is held exclusively by the copyright owner.  A derivative work is a secondary work that incorporates elements of an original, previously created work, and stands alone as new and original relative to the first work.

Even if the work is deemed derivative, finding that the use is sufficiently transformative weighs in favor of the use being fair.

A transformative use favors the alleged infringer.  It is a use that adds some value to the original work, as opposed to just repackaging it.  The work can be transformed by using it for a new purpose, adding some new aesthetic or understanding, or changing the underlying meaning.

Some categories commonly favored as transformative uses are scholarship, education, research, parody, symbolism, certain non-profit or non-commercial uses, production of new technologies, criticism and commentary, and journalistic uses.  Even these “accepted” categories are rife with limitations and are subject to unpredictable outcomes.  Appropriation art, audio remixes, and audio sampling are areas that are still heavily debated.

One of the most famous examples of a derivative work is the visual piece “L.H.O.O.Q.”, in which artist Marcel Duchamp embellished a postcard reproduction of the Mona Lisa with a moustache, goatee, and a cryptic title complimenting the subject’s posterior.

Those few additions, however small, were considered highly transformative because the idea behind the artwork changed from a feat of technical skill to the ridicule of the French bourgeoisie.

Commercial use weighs against the fair use defense, but it also depends on what type of profit is being made. For instance, an artist that uses her own work in a portfolio to secure new clients is unlikely to have her commercial interests held against her, even if the owners of the works are her previous employers.

Likewise, not every non-profit use is given an automatic pass if the court determines that other factors are more controlling.

Conduct of the Defendant – Dealing in bad faith, knowingly exploiting the work, or falsely claiming authorship is relevant to the character of the defendant’s use.  However, using the work after a license has been denied does not weigh against the fair use defense.

 

2. NATURE OF THE COPYRIGHTED WORK

This factor balances the benefit from facts and information being disseminated to the public with the rights of the copyright owner to control their work.

Factual vs. Creative – Think of this as a sliding scale.  The more factual the work being copied, the more likelihood there is for finding fair use.  For example, a filmmaker would have more leeway to use historical footage of the attack on Pearl Harbor in an upcoming film than they would to use a clip from the Hollywood movie, Pearl Harbor.

Unpublished work – The copying of an unpublished work weighs heavily against a fair use finding because the author of the work has the right to control the first sale of the work.  Few exceptions exist, but one such case involved a biographer who copied small portions from the unpublished letters of a famous author who was the subject of his book.

 

3. AMOUNT AND SUBSTANTIALITY

Another sliding scale analysis, this factor balances features both a quantitative and a qualitative aspect.

Quantity & Quality – Generally, the more of a work that is copied, the less likely it is to be a fair use.  Some courts consider “thumbnail” versions of a work to be a lesser amount.

However, even a minute use may not be fair if it targets the “heart” of the work.  To illustrate, while it may be fair use to copy a 3-second clip from Gone With The Wind, it’s less likely to be so if that clip is of Clark Gable saying, “Frankly my dear, I don’t give a damn.”

Parody – Interestingly, the opposite may be true in a parody case, where a use may not be considered parody if the original material is not easily identifiable in the new material (i..e, satire may not be considered fair use parody). Parodies usually want to target the “heart,” or most memorable portions, of the original work to be clear about what they are imitating.

 

4. EFFECT UPON WORK’S VALUE

Often a more difficult factor to analyze is whether the copying negatively affects the income of the owner, or undermines a potential market for the original work.  If a work could have been purchased or licensed for use, there is less likely to be fair use for copying.

Purpose – Is the unauthorized use for commercial or non-commercial purposes?  It’s more difficult to show a negative affect when the copying is done for research or educational purposes.

Parody – Again, the analysis for parodies differs because a parody aims at ridiculing the original.  The test here is not whether the parody negatively affects the original, but whether the parody is so successful that it completely supplants the demand for the original.

 

OTHER CONSIDERATIONS

The above four factors are certainly the meat of a fair use analysis, but the court is free to consider other factors, which may include:

Public Interest – Some courts consider this to be an unofficial “fifth factor.”  When the use relates to issues of public concern, the fair use doctrine is given a wider scope.

De Minimis Use – Fair use will not cover uses that are so insubstantial that they would be considered de minimis, or so minute as to be of no consequence.

Individual Viewpoints – While judges should be neutral and objective parties, the subjective nature of a fair use analysis leaves room for the individual views of judges or juries to affect the decision.

Parody vs. Satire – Works of parody are commonly granted a fair use defense, whereas works of satire are almost always unsuccessful.  A work of parody target’s the original work as the object of the parody.  Satire uses the original work to make a general social commentary.

Acknowledgements/Disclaimers – Acknowledging the original author, or adding a disclaimer that the work is not associated with the original author, may contribute towards showing the user was acting in good faith, but it won’t protect from a copyright infringement claim.

 

Back To The Case…

I covered Fair Use to bring everyone up to speed. So the core disagreement between the parties was whether fair use is “authorized by the law” within the meaning of the Section 512(c) good faith statement.

Universal contended that fair use was not a use authorized by the law, but was rather an affirmative defense that would excuse otherwise impermissible conduct. Under that reasoning, a good faith statement could be made without considering fair use. This is what case law told us for years.

The Ninth Circuit, however, did not agree. First, the court noted that the Copyright Act itself relied on fair use to define what is, or is not, an infringement at all, thereby defining uses that are not infringing. By defining a use as a non-infringing use, it defines an authorized use.

Having determined that fair use is an expressly authorized use in the Copyright Act, the court went on to say that labeling fair use as an “affirmative defense” would be a misnomer. The court also cited several prior Ninth Circuit decisions that also found fair use to be distinct from traditional affirmative defenses.

The court compared the statutory language for compulsory licenses with the fair use language, and noted that both sections phrase their requirements as setting forth what “is not an infringement of copyright.” The court did not see a reason to treat compulsory licenses and fair uses differently in this regard.

Universal presented evidence of the criteria that it used in deciding to issue the takedown notice. The court concluded that Universal’s criteria used in deciding to send a takedown notice did not include criteria sufficient to form a good faith belief about fair use.

In other words, a copyright owner must run a potential infringement use through fair use analysis before issuing a takedown notice.

 

Your Takeaway

All of this to say that copyright owners better have some record of doing a reasonable fair use analysis before issuing a DMCA takedown notice. I interpret this as being a legal opinion from counsel.

You must have a subjective good faith belief that the alleged infringing use is not a “fair use” or you could find that cute baby back up bouncing to your music!

I hope I was able to shed some light on this topic. Feel free to leave a comment with your thoughts!