I am regularly asked to answer questions of whether or not some activity--artistic or commercial--involving the use of previously-created material is considered "fair use" of that material. The inquirers are usually engaged in any number of various activities, such as projecting photos onstage during the performance of play, creating photorealistic renditions of film, album covers, and posters, or incorporating photos into an academic article.
Folks ask me about these types of use because fair use is indeed supposed to encourage discussion of copyrighted works. Fair use (refers to Section 107 of the Copyright Act) encourages commentary, criticism, news reporting, teaching, and archiving of original works. That’s why a scholar hoping to include some movie stills in her doctoral dissertation may have a strong fair use defense to a copyright infringement claim. However, if she decides to begin selling this dissertation on Amazon.com as a book, the copyright owners of those movie stills may begin taking notice.
In a separate blog post I discussed the four factors that courts will examine when determining if an activity constitutes fair use. The factors provide a complex framework for many different aspects of all parties and all works involved and are not pertinent for this blog post. Understandably, the court decisions that apply the factors span the gamut with respect to their emphasis and outcome. Fair use is determined on a case-by-case basis, making a quick answer to a seemingly innocuous question practically impossible.
Another point that must be made is that claiming fair use is an affirmative defense in a copyright infringement case. Fair use is brought up after the opposing party has already initiated a lawsuit. The Fair Use defense will not prevent a copyright holder from initiating litigation against you. To get the benefit of the Fair Use defense, you can expect to spend a significant sum of money defending your interests in a copyright litigation case before gaining the benefit of the defense, assuming that you are successful with a dispositive motion.
Therefore, whether you are a musician sampling some riff in your own work, an academic about to publish her dissertation, or a business owner who wants to jazz up your website with the CEO's favorite music recording, I strongly recommend to my clients that they obtain licenses of the works they are incorporating into their activities. The license removes the risk of copyright-related litigation, and allows you to work with the copyright owner to achieve the best result for all parties.
If you have questions about fair use, copyright, or licensing, then please contact Veronique Kherian at vkherian@higagipsonllp.com. You can also reach Ms. Kherian by telephone at (415) 692-6520 Ext 109.
