Many of us have heard of the term “fair use” with regard to copyright protections. Take the Obama 2008 presidential campaign. In that case, artist Shepard Fairey created the famous “HOPE” poster, featuring a painted version of an Associated-Press (AP) photograph of Barak Obama. After the AP made requests for compensation based on Fairey’s use of the photograph, Fairey sought a court finding that his work was protected by fair use, which would free him from obligations to the AP. That case was settled out of court. A fair use defense can be raised in a variety of settings, from technology cases, to music, to fine art, to news stories. Fair use is even what may shelter Google from certain copyright infringement claims when it creates thumbnail images of our search results. Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (2006).
In practice, fair use is a defense that can be raised in the event of alleged copyright infringement. Claiming fair use will not prevent a lawsuit from being filed or from going to court, but it can save a defendant from a finding of infringement. What makes fair use so difficult to define? Each fair use analysis is fact-specific, so guidelines are not universal. When looking at facts, though, courts will look at the following elements, found in Title 17, Section 107 of the Copyright Act:
*The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes. A finding that the new work is for commercial use will not necessarily lead to a finding against fair use. Courts will look at all of the circumstances surrounding a dispute to determine if fair use can be a successful defense.
*The amount and substantiality of the portion used in relation to the copyrighted work as a whole. What elements of the original work are being copied? Is the entire work copied? That the entire work is copied may not spell the death of your project, under certain circumstances. For instance, in the famous Betamax case, a device that enabled “time-shifting,” or, copying television programs to watch at home at a later time was considered to constitute fair use. Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 (1984). It is more important to look at the amount of the copyrighted work copied in relation to the totality of the new work.
California courts also look at how much the new work has transformed the original work. Taking from a defamation lawsuit, which incorporates some fair use analysis, a comic book that redrew two live-action musicians into half-human, half-worm villains was found to be transformative and included enough original content to warrant protection. Winter v. DC Comics, 69 P.3d 473 (Cal. 2003).
*The nature of the copyrighted work. Is the copyrighted work the kind of work that copyright law intends to protect? A creative copyrighted work may be considered entitled to more protection than news commentary, for instance.
*The effect of the use upon the potential market for, or value of, the copyrighted work. This doesn’t have to relate to the original work in its original form. This part of the analysis can include a market for derivative works—for instance, mugs and t-shirts featuring a movie still. For instance, would a hip-hop take of the classic Roy Orbison song Pretty Woman endanger any of the original song’s market share? The U.S. Supreme Court found that it would not. Campbell v. Acuff-Rose Music, Inc., 510 US 569 (1994).
In Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (2006), the court brought in an extra element for consideration—public interest. To determine public interest, the court balances the interests of copyright holders with the interests of the public and the interests of the defendant. However; in the Perfect 10 case, the court instructed the parties to work out such an agreement on their own, and did not provide a framework for deciding the issue.
What does this mean for your particular case? It depends on a number of factors. Fair use has been inconsistently applied in court decisions, and it can be very difficult to assess whether one particular work will be protected by fair use or not. If you do have a question about the fair use defense, then contact Special Counsel Veronique Kherian at (415) 692-6520 ext. 109, or by email at vkherian@higagipsonllp.com.
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