A Moving Goal Post: Fair Use and the First Amendment

John Bayard is an attorney in Washington, DC.

While most legal systems around the globe have copyright law and its equivalent, there are only two countries that currently practice the notion of fair use. These two nations are Israel and the United States. Because of this, most young copyright attorneys in the U.S. must be concerned when it comes to clients as well as opposing parties claiming fair use exceptions. Further, even for attorneys who do not routinely practice copyright law, fair use has a keen impact on the First Amendment.

There is a misconception about what fair use is and what rights its grants. First off, it is not fair use simply to indicate who owns the copyright. Plagiarism is not the same as infringement and what may protect you in a high school English class doesn’t apply to user created content on YouTube. Fair use is an affirmative defense against infringement claims. It doesn’t apply until someone brings an infringement claim against you.

An attorney dealing with fair use issues may face a difficult dilemma in their defense because courts use a number of different factors when determining whether there is a valid claim of fair use. There are generally four factors considered. These factors are 1) the purpose and character of the use (whether the use is commercial or non-profit); 2) the nature of the copyright work; 3) the amount and substantiality of the portion used in relation to the copyright work as a whole; and 4) the effect of the use upon the potential market. Because it is a subjective test, each court weighs these factors differently depending on the circumstances of the case.

With regard to the first factor, the purpose and character of the use, courts consider whether a derivative work is transformative. A derivative work, as the name applies, is a work derived from another work. A film version of a novel is an example. The Hon. Judge Pierre N. Leval, in his influential Harvard Law Review article “Toward a Fair Use Standard,” argued that it was the first factor that was most important in determining whether fair use defense applied. Judge Leval noted if a derivative work was employed in a different manner and different purpose than the original, the derivative work transcends the original. In this way, the transformative work becomes something new and is no longer seen in the same light as the original.

While the notion of transformative work in many ways strengthens fair use ties to the First Amendment’s rights of speech and expression, it can lead to a lot of confusion as well. Judge Leval’s argument changed the way the courts looked at fair use concerns, but it also left a vague definition for defining what was transformative. The court is not in a position to define what is and isn’t creative and what is and isn’t art. However, to determine whether a derivative work is transformative, courts often cross this line in their rulings. Transformative works allow for a diverse culture where creators are actively using their First Amendment rights in derivative works to criticize the original work or provide commentary on their society.

Fair use concerns often go beyond mere parody into purely commercial concerns. The fourth factor of the fair use test, its impact on the potential market of the original, is sometimes difficult to determine, and different courts have taken different approaches. Sometimes a derivative work can lower the demand for an original work, and sometimes it can increase that demand. Because art is determined by the eye of the beholder, the subjective nature of the fair use test is shown in this factor. In Campbell v. Rose-Acuff Music, the Supreme Court noted that commercial value alone doesn’t determine whether a derivative work falls under fair use.

The subjective approach of fair use has often been criticized by scholars and attorneys, but fair use demonstrates a sophistication of how adaptable the law and legal system are to new concerns. The law itself should help form the structure of a democratic society, but in the same way it should be capable of enough flexibility to meet the various demands of that democratic society. Fair use is in many ways a prime example of how the law deals with these two different posts and promotes the First Amendment.

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