All is Not Fair in Copyright Use

When you drop that photo you found on the internet into your next PowerPoint presentation, have you made fair use? Or are you an infringer? Certainly reasonable minds can agree on what is fair? When it comes to fair use under copyright law, however, reasonable minds (and many unreasonable ones) continue to argue over the “fairness” of any given unauthorized copying. With no clear-cut test for fair use, it remains one of the most misunderstood concepts in copyright law.

Fair use provides a defense against infringement allegations where you have used the copyrighted material “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.” Many people, having heard of the fair use teaching exception to infringement, do not think twice about cutting and pasting photos and other materials into their presentation for the next seminar. When you are speaking at a workshop about the real estate market, certainly dropping in some quotes from bumbling TV real estate agent, Phil Dunphy of Modern Family seems like it should not be against the law. Fair use, however, is an extremely narrow exception. After all, if every educational use was fair use, textbook publishers would have ceased to exist long ago.

So, what is fair? To make that determination, courts look to four factors:

  • 1) The purpose and character of your use.
  • 2) The nature of the work you copied.
  • 3) The amount and substantiality of the portion of the work you copied.
  • 4) The effect on the potential market.

Purpose and Character

Beyond looking for a valid, fair-use purpose (criticism, comment, news reporting, etc.) your use should also be of a “transformative” character. Transformative uses go beyond the original intended use of the copied work and add something new. Again, this makes sense. Otherwise I could simply tape the CBS Evening News and rebroadcast it later that same night on my own network under the fair use guise of “news reporting.”

In adding “something new,” however, you cannot simply copy a photograph and drop it into your presentation. While the rest of your presentation may be new, it must add something new to the photograph itself. An Ansel Adams photograph of a sunset may be a great way to signal the end of your presentation, but that use is not transformative. Drop that same sunset photograph into a presentation on outdoor photography and utilize that photograph to discuss the lighting, angles and equipment used by Adams, and all of the sudden your use is fair.

Parody is an oft-cited example of transformative use. A parody transforms the original by holding it up to ridicule. Again, while oft-cited, this transformative exception is extremely narrow. For example, the book The Cat NOT in the Hat, which told the story of the O.J. Simpson murder trial in the style of Dr. Seuss, complete with drawings based on The Cat in the Hat, was held not to be a parody under the fair use defense. The court noted that the claimed “parody” did not hold Dr. Seuss or his characters up to ridicule, but merely mimicked the style of the original books to ridicule the Simpson trial and its cast of characters. In short, a parody should be a commentary on the original work, not a rip-off of the original work that provides commentary on another subject.

Whether or not a use is transformative is often determinative of the outcome of many a fair use defense, making this the most important prong of the analysis.

Nature of the Work

Copyright law, in general, and the fair use defense specifically, provides broader protection to highly creative, non-factual works. As such, copying a few pages from a biography is more likely (if transformative) to be a fair use than copying that same amount of text from a pure work of fiction.

The Amount and Substantiality of the Copied Portion

The less you copy, the more likely it is that your copying will be found to be fair use. This makes sense as only minimal amounts of the original are needed to provide commentary or critique. Showing one scene from a Hitchcock movie to exemplify how the famous director used camera angles, lighting and music to build suspense seems fair; showing the entire movie to make that same point does not.

In addition to the amount copied, courts also look to the substantiality of the copied portion or, in other words, they look to see if you have copied the “heart” of the work. Copying the most famous scene from a movie (e.g. Tony Montana bursting through the doors, machine gun blazing in Scarface, screaming “say hello to my little friend”) would be less likely to be a fair use than would copying a lesser-known scene from that same movie.

Market Impact

Finally, courts will look to see whether your use has deprived the original author of income from existing or potential markets. When Reverend Jerry Falwell made thousands of copies of a cartoon about him that appeared in Hustler magazine and distributed them for fundraising purposes, the court found that such copying did not diminish the market for the work as that issue of the magazine was already off the market. On the other hand, another court found the marketing of a trivia game about the events and characters in the Seinfeld television show to be not fair use, as that game impaired the copyright owner’s ability to market its own trivia game.

One person’s fair is another one’s foul. So it is with fair use under copyright law. There is no bright line test for what will qualify as fair use. There is, however, one certainty: the fair use exception is far narrower than most people believe. That said, if you are not directly commenting on or critiquing the text, photo, video or music that you are dropping into that PowerPoint, the odds are that your use is not transformative and could lead to the cost, and professional embarrassment, of an infringement lawsuit.