Can I Use That?? Fair Use vs Copyright

by Jewel Leann Williams

For those of us in the creative biz, the question "Can I use that?" comes up from time to time.

Can I use that snippet of a song (or even its title)?
Can I mention that movie plot?
Can I be holding a bottle of my favorite soda while performing an amazing stunt on Youtube?
The list goes on.. . .

Our culture nowadays is very..interconnected. We recycle content by sharing on social media, and everything becomes a part of everything else. One of the ways an artist/author/Youtuber can stay relevant is by both becoming a part of the cultural stream-of-consciousness, and by pulling information from said stream like shiny rainbow trout, to pop into their own work.

There's a very real worry of getting sued for copyright infringement. There are also a lot of myths about copyrights and fair use that muddy the waters.  I thought I would take just a moment and attempt to clarify a little bit.

Creative Commons license: created by Stephan Baum

**Disclaimer*** I am not an attorney, and really, I might give examples of some of this, but the definitions themselves come from the Columbia University Libraries Copyright Advisory Office. Don't quote me if you get sued, is what I'm trying to say.

So, copyright, simply is, that you cannot use someone else's work, whether published or unpublished, in any creative media, without their express written permission. They don't have to have a little "c" next to their stuff, if it's been created, it's copyrighted. The "fair use" exception is this:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, 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 the 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

(Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2546; Pub. L. 101–650, title VI, § 607, Dec. 1, 1990, 104 Stat. 5132; Pub. L. 102–492, Oct. 24, 1992, 106 Stat. 3145.)

Columbia University Libraries/Information Services/Copyright Advisory Office page “Fair use”  accessed 5:25 am 3/20/16 (from https://copyright.columbia.edu/basics/fair-use.html)

So, first:
1) the purpose of the use.

The most likely purpose we would see in our line of work is "criticism, comment, news reporting, teaching, scholarship, research"

It is under this element that we hear discussions of the "transformative nature" of the use. If one takes bits and pieces, or even substantial portions, of a work, and changes them to make them different, or shine them in a new light, that is a consideration for fair use. In this election cycle, there have been a lot of mashups with various  candidates saying certain things, intermixed with other situations, songs, videos, etc., in order to provide political commentary. This is a fair use consideration. 

This is where we get into parody. South Park gets away with murder using the parody defense. Saturday Night Live will use parody as well. The idea is that a commentary about the work itself is being made--usually making fun of it or pointing out things that people may not agree with or that they find offensive or ridiculous. People taking pictures of their least-favorite political candidate, and altering them to make a commentary on all of their failings or some terrible gaffe that makes them unworthy of office, is not necessarily a copyright violation.

Another "criticism or comment" aspect of fair use that may come into play in our creative endeavors, is when people are posting clips, quotes, etc. for reviews of the book, movie, video, etc. 

I found it interesting that you can make multiple copies of things for teaching in a classroom under Fair Use.

2) the nature of the work.

Generally speaking, the courts considering the nature of the work has to do with the medium and the content of the work. A politically charged song or book may be more likely to be parodied or have a commentary made that would be disputed as either a copyright violation or fair use exception.

3) the amount and substantiality of the portion use in relation to the whole copyrighted work.

How much of the work are you using? If you say you are reviewing a book, and you are posting multiple pages, or the main "heart" of the work, you may still be violating copyright law. A few snippets without big spoilers is not going to be a problem. The same with parody. If I were to parody Star Wars Episode 7, for example, and actually use the whole plot in my parody, I might be violating copyright. A scene or two, not as much. 

4) the effect on the potential market for, or value of the copyrighted work.

Let's say I wanted to take a popular dance club song and change the words to completely change the meaning. That is possibly a copyright violation, especially if I am then presenting it to the same, or a viable new, market that may have purchased the original work. (This is why Weird Al gets permission to do his parodies.) Now, let's do the exact same thing, but I'm changing the meaning to teach colors to preschoolers. Most likely, this will fall under fair use. 

 Something that's very important to note is that courts are going to consider all of these factors. None of them is a "get out of court free" card. The courts are supposed to consider the totality of the circumstances. The guidelines can also be very subjective and unless you have concrete case law for your specific use, you should obtain permission whenever you can.

Just one of the many times I can encourage you to "Be Like Weird Al."

More links on Fair Use vs Copyright resources:

This is a whole series on fair use laws:  http://fairuse.stanford.edu/overview/fair-use/

From the US Copyright office:  http://copyright.gov/fair-use/more-info.html

More discussion and examples on "transformative nature": http://www.law360.com/articles/645881/the-changing-landscape-of-fair-use-transformative-is-key

Here's a video from Common Sense Media (www.commonsensemedia.org) that explains copyright and fair use with an animation. By the way, at the end of the video is an icon for Creative Commons license, the particular icon gives permission to use under these circumstances: (so don't start sending me money, ya'll!) Link: https://www.commonsensemedia.org/videos/copyright-and-fair-use-animation

Attribution-NonCommercial-NoDerivs CC BY-NC-NDThis license is the most restrictive of our six main licenses, only allowing others to download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially.