Suppose a famous artist based a painting on one of your photographs, but didn’t get your permission. That’s not fair, is it? It might be, because she may be protected by an important doctrine called fair use. Fair use is a defense against infringement. It allows others to infringe your copyright without penalty and it allows you to do the same if the use involves criticism, comment, news reporting, teaching, scholarship, research or parody. Fair use evolved as a way to balance the rights of copyright holders against the rights of free speech and a free press.
Fair use is not a rigid set of rules. It is a malleable doctrine decided case-by-case in court and that’s one of the problems. It is almost impossible to know for sure in advance if a use is a fair use and fair use lawsuits can be expensive.
In determining fair use, the courts consider four factors:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work (the original work);
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use on the potential market for, or value of, the copyrighted work.
Purpose and character of the use. The courts consider if the new use is commercial and generally the more commercial the less likely that fair use will apply to this factor. The courts also consider if the new work is “transformative,” that is, does the new work make a contribution that has new intellectual value? Courts have determined that parodies are always transformative and usually fair use, but don’t confuse parody and satire. A parody is a work that ridicules another better-known work by imitating it a comic manner. A satire uses an original work to make a comment on society.
The nature of the copyrighted work. The more original the work, the more likely that fair use will be applied to this factor.
Amount and substantiality of portion used. There is no bright line rule that defines how much is too much. Generally the less you copy the more likely your use will be a fair use. This even applies to parodies. However, if you take the “heart” of the work, you’ve taken too much even if that is only a small part of the entire work.
Effect on the Market. If the new work substitutes for, or destroys the value of the original, the copying does not constitute fair use.
The difficulty in knowing if a use is fair use is that the law does not define how these factors should be weighed and different courts place different emphasis on how to weight the factors. Fair use isn’t a free pass. For example, even educational uses have limits. A teacher can’t copy an entire textbook and distribute the copies to a 100 students (who otherwise would buy the text) and claim fair use. A newspaper can’t publish a news photograph to illustrate a news story without permission and claim fair use.
So how do you know if an unauthorized use is a fair use? If you’re doing the infringing, use as little as possible, and if you’ve been infringed ask yourself if they’ve used more than they needed to.
Oh Pretty Woman
One of the seminal cases in fair use analysis is Campbell v. Acuff Rose Music, 510 U.S. 569 (1994) http://www.law.cornell.edu/supct/html/92-1292.ZS.html, which involves a “parody” that the rap group 2 Live Crew recorded based on the hit rock ballad, Oh Pretty Woman, written by Roy Orbison and William Dees. Prior to this case, most courts presumptively deemed commercial uses as not fair uses. Here, the court considered whether or not the rap version was likely to dilute the market for the Orbison song and decided that the audiences were different. The case was returned to the lower courts but 2 Live Crew settled with Orbison, agreeing to pay a licensing fee.
Naked Gun Outshoots Annie Leibovitz
One of the most memorable and best selling Vanity Fair covers was the image of a naked, pregnant Demi Moore shot by Annie Leibovitz. Annie was not happy when Paramount Pictures published a poster for Naked Gun 33 1/3, with Lesley Neilsen’s head superimposed on a naked pregnant body remarkably similar to Annie’s photograph of Demi. She sued for infringement. She lost because the Court found that the poster was a parody and permissible under Fair Use, but as importantly that Neilsen’s head was on a different pregnant body. Go to http://en.wikipedia.org/wiki/Leibovitz_v._Paramount_Pictures_Corp. to see copies of the photographs.