WHEREFORE THOU ART #2
The Fair Use Morass

Copyright law governs the ownership and use of original creative works. Every aspect of copyright law, from its overriding purpose to its smallest minutiae, can be confounding and subject to a wide array of conflicting interpretations and applications. And no aspect of copyright law is more elusive than the doctrine of fair use.

To understand fair use, one must appreciate that copyright is not a “natural” right. The various rights that make up copyright –the right to make copies of one’s original creations, to perform or publish, to make derivative works, and so on – these rights do not arise as an inherent human right or God-given entitlement. Ownership is not something that can be maintained without some outside help. Creative works, like all intellectual properties, don’t lend themselves to such easily delineated ownership. Sing your song, and the folks you sang it to can sing it back to you. It’s not for nothing that Stewart Brand said “information wants to be free.” It does.

Rather, copyright can only arise through laws, and copyright laws are, to put it bluntly, economic drivers. The drafters of the Constitution figured (after considerable debate) that if creators were given a government-sanctioned monopoly to exploit their creations, more stuff would get created. Without copyright laws, a good creation could get ripped off immediately upon its creation, and as a result there often would be no payday for the creator. The creator, discouraged and broke, would stop creating. Not good. Therefore, the Constitution authorizes Congress to make laws giving creators monopolies over their works for limited times.

But the monopoly is not absolute. There are situations in which the law allows a creator’s copyrights to be infringed. The most significant is what is called “fair use,” an exception to the general rule that copying another’s work is an violation of the creator’s rights. The conceptual basis for the doctrine of fair use is that there are some circumstances in which the social utility of copying outweighs the social utility of maintaining the creator’s monopoly (or copyright) over his or her work. In these certain circumstances, some copying of somebody else’s work is OK - fair use is a defense, a shield, against a claim of infringement.

The doctrine began as a common law concept, created by judges who simply couldn’t abide by the strict application of the law, which was essentially “thou shalt not copy.” These brave (and smart) judges, faced with blatant examples of infringement, refused to assign liability to the infringers, because the infringements didn’t really cause any harm and actually furthered various laudable goals, like public debate and commentary, education, or research.

The fair use doctrine was made part of the Copyright Act in 1976, and reads: [T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means…, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

This law is not, as we say in the law biz, a paradigm of clarity. Mainly, the law offers a couple of things for judges to think about, and not much else. There are no bright lines defining regarding right and wrong, what is fair use and what is not. And this is how the law must be. Every situation is different -- every claim of fair use, what is copied, how much is copied and for what purpose -- must be evaluated on its own facts to determine what is “fair.” The law provides the “four factors” that Courts may (or may not) consider, and no guidance on how these four factors should be used, and what else might be considered, and how. And this complete and unavoidable lack of specificity is what causes so many problems.

Judges struggle mightily when confronted with fair use cases to create order out of chaos, to figure out the right thing. Scholars dutifully monitor court decisions, trying to discern patterns and trends in the numerous fair use cases that are decided in the courts each year. Every once and a while the Supreme Court takes on a fair use case, and tries to set the record straight, with varying levels of success.

For example, with regard to fair use factor number one, the commercial nature of the infringing use, the Supreme Court announced in 1982 that every commercial use of another’s work was presumptively unfair. For the following ten years, most lower courts decided that this meant that the factor number one was more important that the other three factors. Lots of bad decisions ensued as fair use defenses were summarily denied whenever the copying was for a commercial purpose. Then, in the early 1990’s the Supreme Court took another fair use case, with a different set of facts and equitable considerations, and announced in a footnote that the commercial / non-commercial paradigm was not all-important after all. Factor number one was put back in its place. Oops!

Given that the notion of fair use baffles the Supreme Court, it follows that creators face a Hobson’s Choice every time they consider using a pre-existing work as part of a new creative work - either forgo use of the existing work (and compromise the creative process) or face a potential claim of infringement.

Despite all of this murkiness, the current atmosphere favors fair use of existing works in several situations. First, critical commentary that incorporates existing works has consistently been given a wide berth by the courts. As a matter of social policy, the right of the public to analyze and discuss copyrighted works (which often necessarily involves reproducing at least some of the existing work) is considered more valuable to society than a strict maintenance of the author’s copyrights. So, critical analyses that quote or otherwise reproduce reasonable (yeah, I know, that word’s loaded—what’s reasonable?) amounts of somebody else’s work are most likely to be found to be fair uses. Similarly, parodies of existing works (which pretty much by definition must borrow liberally from the existing work being parodied) were given the blessing of the Supreme Court in a 1994 decision involving a mediocre and licentious hip-hop rendition of the Roy Orbison classic “Oh Pretty Woman.” This Supreme Court decision led directly to a recent federal appeals court determination that the novel “The Wind Done Gone,” in which the “Gone With the Wind” saga was retold from the perspective of the slaves residing at the Tara plantation, was an allowable fair use parody of the Margaret Mitchell novel.

Clients often ask me about what they’ve are fair use standards -- there’s the “five note rule” and the “three second rule” for copying in music, questions from appropriation artists who believe if their work is suitably profound “fine art” their work will be considered fair use, painters who think their rendering of a current photograph is fair use because the medium has changed. None of these beliefs are valid -- there are no hard and fast rules regarding infringement in music, and no fair use exception based on notes or the passage of time; appropriation artists appropriate at their own peril (for one of the absolutely finest collections of fair use resources and commentary, visit the sound appropriation funster collective Negativland’s website at www.negativland.com, and while there, make sure to listen to their notorious masterpiece “U2.” You’ll never think about Kasey Casem the same way again). Painting a version of a photograph, no matter how skilled or pretty, is an unauthorized derivative work, and an infringement of the photograph.

Of course, issues of fair use only arise when (a) the creator of the original work finds out that the work has been copied; and (2) the creator of the original work is sufficiently p.o.’d by the copying to make a Federal case out of it. More often than not, the original creator never finds out about the copying, or is not sufficiently vexed to do anything about it. (This is true except when the original creator happens to be somebody like the Disney Corporation, in which case the copier is doomed to litigation hell.

This of course, should not be interpreted as giving you a license to steal. My advise to creators with fair use questions is don’t shy away from incorporating pre-existing works into something new, but be reasonable. If you feel like you’re being piggish, you probably are! And if you have a situation where you are at a loss as to whether or not your proposed use is a fair one, seek the advise of an attorney experienced in fair use issues, or seek permission of the author of the original work.

© 2002 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.