When a copyright case goes to court, defendants will often try to claim that they were using the material under “fair use” guidelines. The law is open to interpretation, so creators need to understand their rights under fair use. Renowned entertainment lawyer Damien Granderson breaks down what fair use is, how courts determine fair use, and common examples of fair use.
Copyright laws are intended to protect creators. Once their work is copyrighted, artists can ensure no one takes their rightful property or tries to make money off of their creations.
Copyright infringement is a big deal, the median amount for infringements is well over $100,000. The digital era has made copyright infringement even more of a headache: 55% of the time, copyright cases involve defendants manufacturing or uploading infringing material online.
What does fair use mean? Damien Granderson Explains.
The concept of fair use was created under the Copyright Act of 1976. Granderson explains that fair use distinguishes when it’s okay to use someone else’s copyrighted work in your own works, as well as how you are allowed to use that material.
To take a fair use case to trial, Damien Granderson says the copyright holder has to take the infringer to court with an official complaint. During the proceedings, a judge will weigh four factors to determine if the case fits within fair use guidelines. If they decide it is fair use, the infringing party can continue using the copyrighted work — even if it is unauthorized by the copyright holder.
If you are using another creator’s work, keep in mind that citing the original source doesn’t protect you from a lawsuit. Damien Granderson explains that citations are not a legal shield; saying “I don’t own the rights to this music” will not keep you out of court. When in doubt, it is best to get written permission or licensing agreements from the copyright holder to avoid lawsuits.
The 4 fair use factors
If a defendant claims they were using a copyrighted work under fair use, a judge will look at four criteria to determine if it is truly fair use.
- Purpose of use
First, a judge considers what the defendant is using the material for. Is the defendant using the material for commercial purposes? Or are they using it for nonprofit, educational purposes?
If it is used for education or research, Granderson says judges are more likely to say it is fair use. But if someone is making money off of a copyrighted work, there is a good chance it might not qualify as fair use.
- Nature of the copyrighted work
Next, the judge will look at the copyrighted work. Is it factual, like an encyclopedia, or a form of art or entertainment, like a movie?
If a defendant is copying facts from an official, non-fiction work, it is more likely to be fair use. For example, copying statistics from a news broadcast tends to be treated more favorably than swiping scenes from Harry Potter.
The judge also considers if the work is published and available to the public or if it is unpublished and less accessible. Since copyright holders have the right to control when their works are available to the public, it is less likely to be fair use if their work is unpublished.
- Amount used
How much of a copyrighted work did the defendant use? Did they copy an entire music album, or did they take a two-second sound bite?
According to Damien Granderson, it is more likely to be considered fair use if the defendant uses a very small snippet of a copyrighted work.
- Effect on the potential market
Finally, the judge will look at the material harm that a defendant has done by copying another person’s work.
What effect does this have on the copyright holder’s ability to make money in the market? Do the infringer’s actions create harm for the copyright holder?
For example, if someone leaked an unpublished bestselling book, it would have real harm to the author because they lose out on thousands of dollars in revenue — so it would not pass the fair use test.
Damien Granderson’s examples of fair use
Courts interpret fair use differently, but Damien Granderson shares a few common cases where fair use is legitimate, including:
- Transformation: Using another artist’s work in your own can be permissible if you transform it into something else. Political satire, comedy, and fan fictions usually fall under this umbrella.
- Recording live TV broadcasts: Courts determined that delayed TV recordings do not negatively affect a media company’s ability to earn revenue.
- Using historical clips: A team filming a Muhammad Ali biopic was permitted to use 41 seconds of Muhammad Ali fighting because it was a small snippet of the overall fight.
What isn’t fair use?
Sometimes there is a fine line between what is and is not fair use. Damien Granderson cautions against these high-profile cases that did not qualify as fair use:
- Paraphrasing: A biographer paraphrased unpublished letters from the writer JD Salinger. Because they were paraphrasing unpublished content, the court determined this would have a negative effect on the author’s reputation. Plus, the biographer was using the letters as the bulk of their book.
- Trivia books: A company wanted to make Seinfeld-themed trivia books. The court said this did not qualify as fair use because it hurt the TV show’s potential to create its own trivia game.
- Pirating music: Downloading an entire song without a license does not qualify as fair use if it is not transformed in some way.
Protect yourself from fair use defenses
Although fair use is a very common defense in copyright cases, it is just a guideline. Judges are allowed to interpret the four criteria as they see fit, so every case truly is unique.
When in doubt, it is best to get written permission to use other people’s work, so you do not have to worry about a copyright case. If you are a copyright holder, take infringements seriously — they can have a significant impact on your reputation and ability to earn a living. Work with experts like Damien Granderson, so you have a solid legal team on your side to protect the integrity of your art.
About Damien Granderson
Damien Granderson, founder of Granderson Des Rochers, LLP, is a premier talent lawyer with over 15 years of experience practicing entertainment law. Granderson is skilled at negotiations and transacts deals for some of the biggest names in music and entertainment. He works with Nicki Minaj, J. Balvin, A$AP Rocky, J. Cole, Wizkid, Ne-Yo, and other superstars.
Note from the Editor: TNT Magazine are not legal experts and as such won’t be held responsible for the accuracy of any legal information we publish. We recommend in legal cases to seek independent legal advice that is relevant to your country or regions specific laws.