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Ask Author Law

Fair Use, a Slippery Concept

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: I have been told that grabbing a picture off the web to use in my blog is fair use and therefore legal, especially because my blog is in support of a nonprofit charity. But I have a letter from a photographer saying that I have infringed his copyright in a photo I posted. Who is right?

A: In my opinion, the photographer is right and you are wrong. Individuals and organizations who post copyrighted materials on social media sites often cite fair use as the reason it’s OK to do so. But fair use is not well understood. There are more myths, misunderstandings and false formulas about fair use than there are reliable facts about it. It’s not wise to assume that any proposed use of copyrighted material on a social media site meets the legal standard of fair use.

The U.S. Supreme Court has called the “fair use” doctrine “the most troublesome in the whole law of copyright.” Fair use is subtle and complex because its meaning must be determined by context. In fact, one Federal Court justice called it “so flexible as virtually to defy definition.” To make things more complicated, courts have not hesitated to expand or restrict the scope of fair use protection to serve the “interests of justice.” Is all this complexity really necessary? The answer is yes. The fair use doctrine is a judicial and legislative attempt to balance the interests of copyright holders, society at large, and individual information users. Fair use cannot do that if it is overly simplistic. So, exactly what is fair use and how does it apply to the work of freelancers?

Fair use is not a “right.” It is an affirmative defense to copyright infringement. In legal terms, an affirmative defense acknowledges wrongful behavior but provides an excuse. Self-defense is an affirmative defense to murder because the accused admits to killing the victim, but offers an excuse. This means that the fair use does not apply to material that cannot be protected by copyright in the first place. Copyright cannot protect ideas, facts or events, but only creative description and expression. Ideas and facts, therefore, may be freely copied. Fair use comes into play only when there exists a copyright that has been infringed.

Fair use is codified in statute form as Section 107 of the U.S. Copyright Act, but it is actually a case-based doctrine that existed in the common law long before Congress revised the present copyright law. The copyright statute does not define the term “fair use” or provide definitive rules for its application. Section 107 was intended, according to a Congressional report at the time, merely to “restate the preexisting judicial doctrine of fair use, not to change, narrow or enlarge it in any way.” Section 107 starts with a statement of purpose, and then lists four factors to be considered by the courts. The statute, however, does not explain how to weigh the purpose and the four factors to decide whether any given use of copyrighted material is fair or infringing.

The purposes for which it may be fair to use a copyrighted work include “criticism, comment, news reporting, teaching, scholarship, or research.” This list of purposes is not exhaustive but illustrates some examples of fair use. In order for a use to be fair, the general rule is that it must result in (1) a public benefit or (b) an increase in knowledge beyond the contribution of the original work. When viewed in light of the statute’s stated purpose, a use is not fair, for example, simply because it is a single or small infringement, or a private noncommercial use.

Factor 1 – Purpose and Character of the Use
The first factor requires you to consider “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” In keeping with the goal of social benefit resulting from the unauthorized use of copyrighted material, the courts have been less likely to rule that commercial uses are fair. Despite this, the courts have recognized that virtually all publications are run for profit, and that most uses will exist on a continuum of commercial/nonprofit uses. At the commercial end of the spectrum, the court in the case of Amana Refrigeration, Inc. v Consumers Union of United States, Inc. (431 F Supp 324), said that quoting a portion of an article published in Consumer Reports is not a fair use when used to promote sales of products- it is mainly a commercial use. At the opposite extreme is a purely nonprofit use such as education. If you intend to use copyrighted material, therefore, you must assess the commercial motive and purpose of the work.

Factor 2 - Nature of the Work
The second factor is “the nature of the copyrighted work.” It is more likely fair use to quote factual works, news reports, and biographical facts than a work of fiction. In part, this distinction embodies First Amendment considerations and more broadly the public interest in dissemination of important facts. A dramatic illustration of the weight of the public interest in information is found in the case of Time Inc. v. Bernard Geis Ass. which dealt with the unauthorized publication of still-frames from the Zapruder motion pictures which depicted the Kennedy assassination. The exclusive rights to the Zapruder tapes belonged to Life Magazine Inc., which had purchased them from Abraham Zapruder for $150,000. Several years later, the defendant Thompson approached Life for permission to use frames from the film for a book he was writing about the assassination. When Life declined his offer, Thompson used his access to Life’s archives to secure photographs of the desired frames that he reproduced in his own book. Life sued for copyright infringement and Thompson asserted the fair use defense. Even where Thompson’s behavior in obtaining the images was egregious and the infringement was clear, the court held that the public’s interest in the dissemination of information about Kennedy’s assassination outweighed Life’s proprietary interest in the images.

Factor 3 -- Amount Infringed
The third factor, is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” Although courts will sometimes point out that an infringing use constituted a certain percent of the entire work, there is no magic number. Both the quality and quantity of the portions used are at issue. One illustrative case involves a videotape of the Reginald Denny beating shot by the Los Angeles News Service from one of its helicopters. The news service licensed several television stations to use the footage but denied permission to KCAL. KCAL, however, aired a purloined version of the video during its coverage of the riot and later argued that its airing constituted fair use because the portion it showed was a relatively small part of the entire video. The court rejected this argument because the news station had aired the most valuable segment of the video and held KCAL’s limited use to be infringing.

Factor 4 -- Market Value
The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” A use is unfair when it diminishes the marketability of the original by serving as a substitute. A good illustration of fourth factor analysis is with abstracts of longer works. You have to consider how and why the abstracting is done. In a bibliographic abstract, for example, little of the original work is used and the use is likely to be fair. A synopsis, on the other hand, is likely to contain more material from the original, and you need to take care. There is a higher likelihood that the synopsis will destroy the market for the original work which means that the use is less likely to be fair.

Fair Use Analysis
Fair use is a flexible and uncertain doctrine about which there are myriad myths and misunderstandings. Avoid making quick assumptions about fair use and be highly skeptical about online information about fair use. Whether or not a particular infringement can be excused as fair use depends heavily on the facts of each case. In each case, you must consider the underlying purpose of the fair use provisions of the Copyright Act and a balancing of the four factors cited in the statute, as well as the case law interpreting each factor.
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