Speaker 1: What is fair use and when does it apply? Hi, I'm attorney Gordon Firemark and this is Asked and Answered where I answer your entertainment law questions to help you take your career and business to the next level. One of the most important concepts in copyright law these days is fair use, but there are a lot of misconceptions out there about it. One of the most common of these is the notion that there's some rule of thumb about how much of a copyrighted work you can copy without being liable for infringement. In music, for example, people say that if it's less than four bars, it's okay. It's not. Another one is that if you're not making money from your work, it's not a problem. Oh, it is. And another is that if your use is for educational purposes, you can copy pretty freely. You can't. Although all of these notions have their roots in the principles of fair use, it's never quite as simple as these rules make it seem. Unfortunately, fair use is anything but simple. In fact, it's one of the more complicated aspects of copyright law. So in this video, I'm going to give you a brief explanation of fair use, but it's important that you understand there are no rules of thumb. Each case has to be evaluated standing on its own. Okay, here goes. Fair use is a doctrine that evolved under the old US copyright law, the 1909 Copyright Act, and then was codified or made a formal part of the copyright statute when that was updated in 1976. The principle is simple. To deal with the inherent conflict between the free speech principles of the First Amendment and restrictions on copying imposed by the copyright law, it was necessary to create a defense for infringement for certain kinds of uses under certain circumstances. To do this, the courts and the Congress set up a multi-factor test, and it looks at four factors in particular. The first of these is the purpose and character of the alleged infringing use. Educational or scholarly or critical criticism, commentary, and other artistic or transformative kinds of uses will weigh heavily in favor of fair use, while more commercial or more verbatim copying tip the balance in the other direction. The second factor is the amount and substantiality of the portion taken from the original. This is where the idea that taking only a small snippet is okay comes from. But in reality, it's actually possible to take the very heart of a piece without copying very much at all. The third factor is the nature of the original work. If it's an artistic work, it's going to be treated very differently than if the original was something very commercial, like a billboard or an advertisement or a TV commercial jingle or something like that. The fourth element or factor is the potential impact on the market for the original if the infringement were allowed to continue. Now obviously, if there's no real market harm, this factor is going to favor fair use. But if the market is strong for this kind of thing and the copying looks like it's just a way to avoid paying for rights or whatever, things are going to come out differently on this factor. Now none of these factors is dispositive of the question by itself. The court is going to look at the overall balance of these factors in making the determination on whether something is fair use. And I want to emphasize that this is not a one-size-fits-all thing. Each alleged infringement has to be viewed standing alone by the court in a copyright infringement lawsuit. It's not something you just decide, okay, this is a fair use, so I'm going to go ahead. By the time most folks get to argue about whether their use is fair, they're already being sued and they're paying lawyers tens of thousands of dollars to defend them. Now that's not really ideal when we're talking about something like a YouTube video, right? In that case, what's more likely to happen is that the owner of the original material who objects to your use will issue a DMCA takedown notice and YouTube will comply. That's how they protect themselves. Then if you respond with a counter notice where you can make the fair use argument and the material gets restored, then the other guy may choose to sue you and then you get to argue about things in court. But if you're doing a project where the time and expense justify it, and if you're sure you need a particular bit of copyrighted material, the best course of action is to ask for permission or a license, even if that means paying something for it. If you're certain the permission will be denied and you're fairly sure that fair use will apply, it's wise to get a lawyer's opinion letter on that subject. Without it, your production won't be able to get insurance, and without insurance, it's going to be really hard to get distribution. So let's recap. There are four fair use factors, none of which controls the outcome by itself. They are 1. The purpose and character of the alleged infringing use. 2. The amount and substantiality of the portion taken. 3. The nature of the original work. And 4. The potential impact on the market for the original. Now there have been some interesting court rulings on fair use in the past few years. If you are a content owner and someone has used your stuff without permission, it's no longer okay to just send a DMCA takedown notice right off the bat. Courts have ruled that before filing that notice, a copyright holder has to actually consider the question of fair use. If you don't, you could be countersued, essentially for abuse of the DMCA process if things go that way. So fair use can get pretty tricky, and if you're in a situation where it's likely to be a factor, you really do need to get in touch with an experienced entertainment or copyright lawyer. Now I've prepared a handy fair use quick reference guide that you can download for free. Just visit firemark.com slash fair use guide, provide your email address, and it's yours. And if you have a question you'd like to see answered here on Asked and Answered, just visit firemark.com slash questions and let me know. See you next time.