Fair use is a doctrine that is used to encourage criticism and commentary of copyrighted works. It is based on the concept that one should be free to use portions of copyrighted materials without asking permission from the copyright owner. It is an equitable principle that is frequently used as a defense by those sued for copyright infringement.
Determining fair use. To get a general sense of how fair use is applied, one must understand a set of fair use factors outlined in the lineage of case law dealing with copyright infringement. These factors are weighed in each case to determine whether a use qualifies as a fair use, often through varying court decisions with an expansive or restrictive meaning that could be open to interpretation. If a use is deemed not to be a fair use, then one would essentially be infringing on the rights of the copyright owner and may be liable for damages. Unfortunately, even if you strictly follow these factors and the copyright owner disagrees with your fair use interpretation, your dispute may have to be resolved through litigation or the payment of licensing fees.
Fair use in the general sense, with no hard-and-fast rules, is the use of copyrighted material without permission from the appropriate copyright owner for a limited and, as the courts deem, “transformative” purpose so as to comment on, criticize, or parody such copyrighted work. Specifically, the Supreme Court emphasized that the transformative nature of the use determines whether the material has been used to assist in the creation of something new, rather than merely copied verbatim into another work. In other words, one must ask: (1) has the material taken from the original work been transformed by adding new expression or meaning? and (2) was value added to the original, thereby creating new information, or new aesthetics, or new insights and understandings?
Generally, two categories are used when making a fair use—commentary or parody. Typically, when focusing on news and editorial reviews, one would look to the first category, commentary. When commenting on or critiquing a copyrighted work, fair use principles would allow one to reproduce some of the work to accomplish one’s intent.
Courts have generally used four factors in resolving fair use disputes, which are laid out in Section 107 of the Copyright Act: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken; and (4) the effect of the use on the potential market.
The purpose and character of the use. The “purpose and character” factor is the determining factor in many fair use decisions, as it allows the court to take a subjective look into the potentially infringing party’s intentions behind the use. Particularly in cases involving news reports, footage, reviews, and sports highlights, this factor typically favors the party claiming fair use for various reasons.
The first thing that we need to know is that copyright protection does not protect factual information conveyed in the copyrighted work, meaning that publicizing the scores of a sporting event or other factual information such as injuries, retirement, and so forth is considered fair use and does not constitute copyright infringement. What helps to strengthen a fair use argument in a case not involving the use of mere factual information is the use of the copyrighted material for the purpose of legitimate news commentary. For example, when using a clip or photograph to report the results of a sporting event or other factual information, courts have regarded the use of copyrighted material as fair use when the use is (1) brief quotations only; (2) presented in a news report; and (3) presented in a newsreel or broadcast of a work located in the scene of an event being reported.
Nature of the copyrighted work—published or unpublished. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of his or her expression. Therefore, you have a stronger argument in favor of fair use if the material copied is from a published work rather than an unpublished work.
Amount and substantiality of the portion taken. A general misunderstanding of fair use application has led to the “seven-second rule,” which many clearance representatives follow. A brief use of footage may not be deemed fair use unless all fair use factors can be applied. But the amount of footage used is a key factor in determining if a use is not fair, as highlighted in a key 1977 court case. The Second Circuit found that a CBS affiliate’s use of a one-minute-and-15-second clip of a 72-minute Charlie Chaplin film was not a fair use when used in a news report about Chaplin’s death. The court deemed that the portions taken were “substantial” and part of the “heart” of the film. The court’s analysis may have been different if CBS had used only a limited portion of the footage to simply enhance its news commentary on Chaplin’s death. The Second Circuit’s ruling is a clear indication that this type of use will never be considered fair use.
Effect of the use on the potential market. One of the most important fair use factors is whether the use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. If a copyright owner feels that he or she has been deprived of income, this is likely to trigger a lawsuit. This is true even if you are not competing directly with the original work.
Does fair use apply? Although the four-factor test of Copyright Act Section 107 provides a firm foundation for understanding which uses are fair uses, courts have infamously favored different factors in different cases, resulting in very unpredictable outcomes. There is a sizable gray area in which fair use may or may not apply.
So how does a news organization invoke fair use while falling within the permitted guidelines established by case law and without invoking potential litigation? The simplest way is to get permission from the copyright holder, but this is not always possible given the fluidity and immediacy of news reporting. To invoke fair use when using noncleared third-party clips, the news organization should follow these guidelines: (1) make sure the use is for a legitimate news report; (2) only use the clip when reporting on a fairly recent news event (usually 24 to 48 hours); (3) make sure that the use is a brief use of the clip to underscore the reporting of the news; (4) make sure there is actual commentary or criticism by a news reporter or anchor of the action appearing in the clip (there has to be a “transformative use” of the copyrighted material); (5) if reporting on a sporting event, make sure the event has been concluded, meaning it may not be fair use if the game has not been completed; and (6) make sure the materials are used in a bona fide news program.
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This article is an abridged and edited version of one that originally appeared on page 1 of Entertainment and Sports Lawyer, Fall 2010 (28:3).
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