Straight Forward Application of the Fair Use Doctrine (If There Is Such a Thing) – Part 1

There is a great deal of confusion and misunderstanding about the Fair Use doctrine of the US Copyright Act. Attorney Brock Shinen addresses how Fair Use impacts church activities and unpacks the basic key elements of Fair Use. He has granted CCS permission to reprint his article. Here is Part 1, look for part 2 next Monday.

Part 1

Most of us would like a simple answer. Am I permitted to use three minutes of a feature film in our church’s multimedia production? Can I quote three paragraphs from a famous book and incorporate them into a sermon? Can I download a picture from the Internet and use it on the church’s website? As much as any of us would enjoy a “yes” or “no” to any of these questions, the plain language of the Copyright Act is extremely instructive and apparently often ignored. By using a few simple tools to understand the “Fair Use” doctrine, virtually anyone can have enough information at their disposal to make a sound decision.**

Preliminary Questions

Before you venture into your Fair Use analysis, you must ask yourself two questions: (1) is the work I desire to use subject to copyright protection; and (2) did I obtain my copy of the work from a legal source and in a lawful manner. If you answered “yes” to both of these questions, you can move on to your Fair Use analysis. If you answered “no” to either one, Fair Use analysis may be inappropriate.

For example, let’s say you want to use a passage from a book written in 1784 in your sermon written in 2013. Since that book would now be in the public domain, Fair Use analysis isn’t necessary. The copyright in that book is now “owned” by the public, meaning essentially, you are permitted to copy, quote and otherwise use it at will. [Note: That doesn’t necessarily mean you can copy it and attempt to pass it off as your own original work…but that’s a whole different story.]

If, on the other hand, the work is subject to copyright protection, but you obtained it from an illegal source, Fair Use may not apply (even if your use is without a doubt a “fair”). Moreover, the topic of how you obtained your copy is becoming increasingly important in the digital age. That means that if you rented a DVD, decrypted it to make your own copy, then used a portion of your copy – that would otherwise clearly amount to Fair Use – you may still be liable for infringement. This is a much-debated topic, however, and is not yet fully resolved. In the meantime, make sure you obtain your copy of the copyrighted work legally and in a lawful manner.

One caveat to keep in mind relates to licenses that apply to copyrighted materials, such as VHS tapes rented from your local video store or library. When you start the video, you invariably see a message stating that the movie is for home use only and may not be copied, distributed, etc. While this is true in a literal sense, the Fair Use doctrine still applies, meaning that you may copy parts of the video if your use comports with the Fair Use doctrine. Note the difference between copying a portion of a VHS tape (which does not have copy protection controls) and copying a DVD (which has copy protection controls or “CSS”). Once you have determined that Fair Use may apply to your use, you can begin your Fair Use analysis.

The Statutory Criteria

At the outset, you should know that the owner of a copyright is granted certain exclusive rights, namely, the rights to copy, distribute, perform, display and make derivative works of the original work. Without the Fair Use doctrine, virtually all copying would be unlawful. Congress created the Fair Use doctrine, however, to allow people and institutions to exercise the rights of a copyright owner for the purposes of criticism, comment, news reporting, teaching, scholarship or research. As you might guess, the exception was probably carved out to enable news organizations and education institutions to use copyrighted material for the benefit of the public. The Fair Use doctrine, however, has grown well beyond its original purpose and now plays a significant role in other venues and industries.

In view of the purpose of the Fair Use doctrine, the Copyright Act sets forth four criteria for determining whether a use is “fair” and thus exempt from infringing the exclusive rights of the copyright owner: (1) the purpose of the use (including whether the use is commercial); (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect on the market of the original. To better understand the relationship between the four factors, we will address them one-by-one.

~The Purpose of the Use

You should always evaluate the real reason why you are using a part of a copyrighted work. If it is simply to exploit its commercial value or to avoid generating your own original work, then the courts will likely view your use as infringing. In addition, if your use is purely commercial in nature, the courts tend to find that the use is infringing. Note that whether the use is commercial or not is not determinative; rather, it is a significant factor considered by the court. On the other hand, if your use is truly to comment on or criticize an existing work and is not for profit, this factor will weigh heavily in your favor.

~The Nature of the Copyrighted Work

If an original work embodies mostly facts, the possibility that your use will be non-infringing increases. If, on the other hand, it is composed entirely of fictional expressions, more protection may be afforded. Likewise, if the original work is at the height of its commercial value, and part of that value relates to the fact that copies of the original are limited, your use is more likely to be infringing. This factor in the Fair Use analysis may be difficult to understand, but do not bypass it.

~The Amount and Substantiality of the Use

If you copy all of an original work, you are likely infringing. If you copy only a small portion, you are much safer. To say, however, that there is a hard-and-fast rule as to the amount of an original you can use without violating the copyright owner’s exclusive rights is without merit. Under the right circumstances, thirty seconds or two notes of a song may infringe an original; one picture from a book may infringe the whole; even a few frames from an entire film may be infringing. The reason for this is simple: the portion you copy may be the most important portion of the original. An example of this took place when an Internet website began selling a handful of still frames from a full motion picture, without the consent of the copyright owner. The website did not sell the entire film. The website owners were sued for copyright infringement and argued the Fair Use applied; the court found the website owners liable for copyright infringement. The court, of course, considered the commercial nature of their use. It also considered, however, the fact that the still frames were probably the most valuable aspect of the film, since they could potentially generate more revenue than the film itself. This is a perfect example of why you should not rely on a belief that a concrete rule applies to this factor.

In evaluating your use, honesty is the best practice. Consider if the parts of the original you wish to use are the essence of the original work – even if only a small part. If the three notes of a song you want to include in your own song are readily recognized from the original work, then you may have used too much. If, on the other hand, you are only using a small portion of an original work, and that portion is not the “heart” of the original, then this factor will probably weigh in your favor.

~The Effect On the Market

Simple and to the point: Does your use of the portions of the original work effect the market for the original. If so, the odds are against you. If not, the odds are in your favor. This is relatively straightforward in the sense that you can evaluate from a common sense perspective whether your use will have any impact on the market for the original. If people will stop buying the original because of your use of parts of the original, the effect on the market of the original is negative and you will likely be infringing. If, on the other hand, despite your use, people will continue to purchase the original, the effect on the market for the original is not injured, and your use is probably fair.

There is one caveat here worth pointing out: simply because your use may decrease sales of the original work is not the determining factor. Rather, it’s whether your use supplants the market for the original, i.e., your work becomes a replacement for the original work.


~ Brock Shinen, Esq.

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© 2012 Brock Shinen, Esq.

For more than a decade, Brock Shinen, Esq. has helped businesses, entrepreneurs, artists, and people pursuing their passions tilt and shift towards success.