Copyright Fair Use

Attorney Michael Lasky discusses Copyright Fair Use

Contact Michael Lasky

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My name is Michael Lasky, I’m an intellectual property attorney, and for the next few minutes, I’m going to talk about copyright fair use. I promise you this topic could take several days but I won’t do that I will do it in about five minutes and you will see how complicated it is.

The first problem with copyright fair use is the word fair use is a terrible term. There is nothing about fair and yes, there is something about use but when you put them together, I often hear from people saying I used it because I had fair use. Well, how do you get that? Well, it was fair that I used it. Ridiculous, but it happens so let’s talk about the real fair use.

Fair use is a limited exception to the copyright and as you see on that slide someone came up with an idea of showing it as like a planet and there’s like this little blue ring, which is I assume the atmosphere but that’s not exactly the way it is. Fair use is this really fuzzy zone and if you try and justify all the cases on fair use, you will come back and say, they don’t make sense there is no clarity at all.

So I’ll just tell you the rules and I’ll give you some examples and then you’ll walk away and say I don’t get it, but that’s the way it is. All right, the rules are that fair use is based on a four-part test and here are the four parts and if you just read them they don’t really mean anything so here I’ll try and explain a little bit. First, the purpose, and character of your use, why are you using it? Now if you’re doing a scientific, scholarly work and you’re analyzing somebody else’s work and critiquing it that is perfectly square on with number one. On the other hand, as you move away from that you start to lose your exemption under number one so we’ll go to number two, what is the nature of the copyrightable work? Well, again, that means nothing what it really means is is it factual or is it creative? To the extent it is creative you have less access to it as fair use. To the extent that it is factual since facts are not copyrightable then you have more access to it.

The third is the amount and substantiality of the portion taken. Well, everybody says well, how much can I take, three paragraphs, two paragraphs, four lines of code, four hundred pages of code, there is no number and it’s not just the number it’s which part did you take. If you took the most important part of whatever it is, you took and that is substantial whether it’s two lines or two pages or one photographs, so you have to be careful.

And the fourth is usually the most important but it isn’t always and it is the effect on the potential market. This is the financial effect. But you know, the financial effect is always there so lets’ take an example, I’m a doctor, and I want to take a copy of a journal from a medical journal to talk about it in a grand rounds discussion where we’re going to talk about medical procedures. Well, it’s for a scholarly purpose but, and maybe I don’t take all of it, but that journal, which is probably quite expensive is sold to those doctors. So if the doctors are able to take it and use it then where is the financial gain for the copyright owner and that’s the problem. So very often, you’re going to fail on number four but you can fail on all of them.

So here’s a couple examples, as you can see, this is the famous Demi Moor pregnancy front cover of Vanity Fair and then you call it a parody of Leslie Nielson for a movie 33 ½ I forget what the whole movie is about and of course, that went to court and it was held to be a fair use. It wasn’t Demi Moore’s body, by the way, somebody else substitute and it certainly wasn’t her head, nevertheless, fair use. And I’ll give you a clue; if it’s funny, you have a good chance of getting by on fair use. There’s nothing in those four tests about funny but it seems to work.

Okay, this is the one that went to the supreme court and if you want to hear it and it’s worth hearing, you’ll see the citation below it was the Roy Orbison and 2 Live Crew rendition of Oh, Pretty Woman and as 2 Live Crew did Pretty Woman. Now Pretty Woman the song became very popular because of the movie and 2 Live Crew made a, well, derivation. The Supreme Court held it to be a fair use not an infringement. You listen to it yourself and see what you think but it certainly threw the whole world of fair use into a tizzy.

So in your fair use analysis you have to use the four steps but here are two extra steps, which are not in the law. If it is very funny, it has a high probability of passing the fair use test never mind all the tests. If it is very sleazy as in porn, it has a very low probability of passing the test, never mind the four criteria. Just check the cases and you’ll see there’s a citation below, which gives you lots of cases to look at.

If you want to get really deep into this go out into the internet and take a look at Aero, which is the latest issue in copyright fair use where Aero is taking a signal off the air and rebroadcasting it on the internet and so far they have been able to claim and succeed on fair use. The case will probably go at least to the court of appeals and we’ll get a decision. IT’s kind of a follow on to the Sony Betamax case, which also created a fair use analysis.

The last thing about fair use is that it does not apply uniformly from country to country. We have our own rules and copyright is a national law, which is under an international treaty that if you go to another country you will be treated fairly, fairly, but you will not be treated under our law. So if you have a fair use issue for a use that will span outside the United States you’ve got to find out what the law is in that country. And of course, they have an entirely different system such as the moral rights analysis as you see below.

So there you go, I’m sure I haven’t solved all the issues but at least I’ve raised them. If you have a question send me an e-mail, I’ll try to answer. Thanks so much.