What Fair Use Isn’t

Post Authored by Sam Castree, III

Fair use.  There is probably no aspect of copyright law more misunderstood (or perhaps more willfully misapplied) than fair use.  It’s easy enough to describe what fair use is, because an entire section of the Copyright Act is devoted to it (to wit, 17 U.S.C. § 107).  But, rather than get into what any of that statutory language actually means, it may be more productive to focus on what it doesn’t mean.  This article will cover what fair use isn’t, and hopefully dispel some of the myths and errors that circulate so freely.  While there isn’t enough room in a simple blog post to offer a comprehensive guide, hopefully, some of the worst offenders can be brought to light.

1. Fair Use is Not . . . Claiming That Something is a Fair Use

Anyone can claim that something is a fair use.  Some slightly more sophisticated individuals can even cite to the fair use section of the Copyright Act and use an impressive-sounding disclaimer like “[f]ootage used under authorization of Title 17 of the United States Code, Section 107.”  That sounds really lawyerly and everything!  But none of that matters.  Calling something a fair use does not mean that it is a fair use.  Fair use is a multifactor, fact-specific balancing test that may constitute an affirmative defense for a defendant otherwise accused of copyright infringement.  There are a lot of specific details that go into determining whether something is a fair use, and the slightest change in the facts might drastically change the analysis.  So saying, “but this other person is doing it,” does not constitute a valid defense (for a variety of reasons).

2. Fair Use Is Not . . . Giving Away Content for Free

“I’m not charging for it, so it’s okay.”  If I had a dollar every time I heard this, I might be able to afford to license some of those infringing properties.  Whether it’s an unauthorized derivative work or facilitating unauthorized public performances, “not making any money” is irrelevant to the fair use calculus.  It is true that one part of one factor of the fair use analysis is “whether [the] use is . . . for nonprofit educational purposes.”  But that doesn’t simply mean that the would-be infringers didn’t make any money.  Nor does it mean that they merely intended not to make money (Grokster, BitTorrent, and their ilk don’t charge, after all). Rather, the lack of revenue should be coupled with a legitimate educational purpose.  Sorry, but “everyone should see and enjoy this movie!” doesn’t count.

3. Fair Use Is Not . . . Disclaiming Ownership

Saying “I don’t own this music” is not fair use.  Unlike the last myth, it’s not even tangentially related in any conceivable way to fair use.  On the contrary, it’s what we lawyers like to call an “admission of liability.”  What it really says is “I wasn’t allowed to do this; you caught me dead to rights.”  If someone isn’t the copyright owner, or at least a proper licensee, then that person is not allowed to make or distribute copies of the work in question.  Sure, the use could still be a fair use regardless, or some other defense might apply, but winning in court won’t have anything to do with the disclaimer.  I’ve never heard of a copyright owner who was so impressed with the honesty of “I don’t own this” that an infringement lawsuit was voluntarily dismissed.

4. Fair Use Is Not . . . Going to Stop You from Getting Sued

Speaking of lawsuits, even if fair use is plausible in a given instance, it won’t necessarily stop a lawsuit.  As mentioned above, fair use is an affirmative defense.  Defenses are raised after a lawsuit has begun.  Before fair use is even an issue, a defendant first has to get served, pay to file an appearance, and then respond to the complaint.  Thousands of dollars in legal fees will be expended before anyone gets the chance to so much as utter the words “fair use.”  True, some things are so obviously fair use that no one in their right mind would sue, and no lawyer in their right mind would take the case.  A film critic using five seconds of footage from a feature-length movie as part of a legitimate review is in no real danger.  But the further one moves away from these archetypal examples, the more uncertain the defense becomes, and the probability of a nasty demand letter–or worse–increases.

Therefore, those who plan on relying on fair use should be very sure about their defense and be very prepared for the cost and headache of making the case to a judge or jury.

About the Author:

Sam spriteSam Castree, III is the Head of Entertainment Law at Crawford Intellectual Property Law.  During his career, he has assisted game developers, Twitch streamers, authors, musicians, and others in the entertainment industry with their legal needs.  He is experienced in securing copyright and trademark protection for clients and in drafting and negotiating publishing deals, licensing agreements, and other contracts.  Sam is a frequent speaker on legal topics at venues from small meet-up groups to national conventions.  He has given presentations at such events as Anime Central, the Midwest Game Developers Summit, MAGFest, and MAGWest.  He has also published articles on such topics as game cloning, the Digital Millennium Copyright Act, and the TRIPS Agreement vs. Thomas Aquinas.

Prior to law school, Sam earned a degree in Cinema Studies at the University of Illinois and worked as the technical director of a theater company.  He earned his J.D. from the Chicago-Kent College of Law.


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