This is a guest post by Rachel Paul. Paul is the Supervisor in the Performing Arts and Media department for the University of Arkansas Libraries. She catalogs and maintains the digital repository of institutional concert recordings for the University of Arkansas Department of Music. For questions about this blog post or the Performing Arts and Media department, contact her at firstname.lastname@example.org, or 479-575-5518.
What is fair use?
Fair use is a part of copyright law that allows some uses of copyrighted materials without obtaining permission from, or providing payment to, copyright holders. The purpose of copyright is to promote the progress of science and the useful arts. Fair use is a doctrine that helps achieve that purpose by allowing educators and other individuals to use, transform, and critique copyrighted works.
There are four factors to keep in mind when claiming fair use:
- Purpose/Character of the Use
- Nature of original (copyrighted) work
- Amount and substantiality of portion used
- Effect of use on market for or value of source (copyrighted) work
Even if you have done your due diligence and believe you are using something under fair use, you may be brought into the court system anyway. So, how do you protect yourself?
The University of Minnesota has an interactive Fair Use tool that can help you process the factors of fair use. This tool will not only help you to better understand fair use in a particular instance, but prove to a court that you “did your homework” should you be prosecuted for copyright infringement.
Now, let’s look at Fair Use in action.
Many educators and content creators are working in the medium of film or online video where copyright infringement is a huge concern. When is it okay to screen films and to whom; how much is too much when using video clips; what really constitutes transformation; and if a work is transformed enough, does it now qualify for copyright?
Here are some case studies:
- Keeling v. Hars et al. 13-694-cv (2nd circuit Oct. 30, 2015): Keeling created Point Break Live!, a parody of the Keanu Reeves/Patrick Swayze film, Point Break. She was originally sued for copyright infringement for the play itself, but won her Fair Use argument. Then, she wanted to copyright her unauthorized parody, and won.
- Equals Three, LLC v. Jukin Media, Inc., 14-09041 (C.D. Cal. Oct. 13, 2015): The court determined that in the case of 18 of 19 videos, Equals Three used no more than necessary of each viral video reproduced from Jukin Video for purposes of its commentary; and that the jokes and commentary added something new to the viral videos.
- Katz v. Chevaldina, No. 1:12-cv-22211-JLK, (11th Cir September 17, 2015): Former commercial tenant, Chevaldina, used an unflattering photo of her former landlord, Katz, in 25 critical blog posts. Katz then purchased the copyright to the photo and sued Chevaldina for infringement, but the court deemed the use was noncommercial and transformative because, “in the context of the blog post’s surrounding commentary, Chevaldina used Katz’s purportedly ‘ugly’ and ‘compromising’ appearance to ridicule and satirize his character.”
The important things to remember? None of this is set in stone. Every time something copyrighted is used, it must be analyzed against fair use factors again.
For more information, check out these fair use resources: