Opinions on Fair Use – Everyone’s Got One
Everyone has heard of the term “fair use.” Everyone has an opinion as to what it means. Unfortunately, very few of those people have any idea what they are talking about. And when it comes to fair use, the only thing worse than no advice, is bad advice.
Spot the Issues
This blog post is not going to turn you from one of the the unwashed, into a expert on fair use. At best, it will help you identify the issues and understand when you may be getting into a problem area. What follows is quick primer on how not to get sued for what you thought was fair use.
Ignore Urban Legends
“I am not making money on it; it’s fair use.”
“They should be happy with the free press.”
“I’m making them money, it’s fair use.”
“It didn’t have a copyright notice on it; it’s fair use.”
If you hear any of the foregoing statements bandied about your office, keep my cell phone number on speed dial. There is a strong likelihood you will be speaking with me in the near future.
Don’t Trust Phil From Accounting
A little preventative action now may avoid a courtroom in the future. So what do you need to know about copyright? The first thing is to never believe anything about copyright law unless you hear it from a copyright lawyer. Not a regular lawyer, a copyright lawyer. Even then you might want to check out a second or third opinion until you find a copyright attorney you trust.
What is Fair Use?
Sometimes it is permissible to use limited portions of a
copyrighted work, including quotes, for purposes such as commentary, news reporting, scholarly reports. This is particularly true for current news stories & historical analysis (to promote accuracy). The quoted material, however, must not be unreasonably large and must not destroy the market for the original work (quoting the salacious portions of Monica Lewinsky’s memoirs).
Be aware that courts rarely uphold a claim of “fair use” in a for-profit, commercial context unless the use is directly tied to parody, news or critical commentary. In determining whether your copying constitutes “fair use” the courts will look at:
1) The purpose and character of your work-Are you making money from the copies?
2) Nature of copyrighted work-Is it a form book meant to be copied?
3) Amount of work taken-Are you taking 90% of the work or 2%?
4) Economic impact of taking-Are you taking the 2% that makes people want to buy the original (Lewinsky passages)?
Tipping the Scales
Courts weigh all of the foregoing factors in determining whether a particular use is an allowable fair use. If you are copying 1% of the non-critical portions of a form book for your own personal use, you are okay. If you are selling 98% complete copies of the The Davinci Code, you are in trouble. For anything in between, it is best to either consult your copyright attorney for advice or stick with copying works already in the public domain.
Now, For the Really Important Question
Am I going to get sued? Curiously, the answer to this question often has little to do with the legal analysis. No law or lawyer can tell you whether you are going to get sued. Whether you are going to get sued depends much more on the motivations, as well as the relative strengths of the parties. Is the entity from whom you are taking the copyright work an 800lb gorilla run by the guy with an itchy trigger finger you fired three years ago? If so, a detailed analysis of the esoteric legalities of fair use under United States Copyright Law may be a moot point. You are going to get sued. And since you likely do not have the $30K+ to fight the case, you are likely going to lose or settle for far less than what might otherwise be considered “fair.”
Fair Use and Social Media
The law governing fair use is the same for social media as it is for any other media. While some forms of social media, such as Tweets on Twitter may not be copyrightable, most forms of social media are protectable. The difference between regular media and social media, when it comes to fair use, is the enforcement.
The Authors Decide
Many bloggers enjoy, and even encourage other bloggers and commentators to republish there work. Most social media content creators are more concerned with getting proper credit for their work, while decreasing its distribution. This is not to say acknowledging authorship will do anything at all to prevent a judge from finding you infringed someone’s copyright. It won’t. What is different about social media is that authors are often much more willing to grant you permission to republish their work. Just be sure to ask permission before you use it and to get the permission in writing. An email from the author is usually sufficient.
Think Like a Business
While I am all for fighting the good fight and not paying the bad guy money to use against the next innocent victim, a Pyrrhic victory, or more likely complete immolation at trial, does not help anyone. You may think you are becoming a martyr for the cause, but getting wiped out in court may actually do more harm to future victims than paying money.
Knowledge is the Key
Large corporations often use a track record of putting infringers out of business to extract settlements. The smartest move for you is to review your copyright material beforehand to check for any potential copyright problems. If you own a business, be sure to include “fair use” policies in your employee handbook. With copyright issues, an ounce of prevention can be worth about seven figures of cure.
For more on fair use, as well solutions to the most common internet law problems, be sure to check out CyberLaw: A Legal Arsenal For Online Business.