If you get sued for copyright infringement, the case may all come down to an affirmative defense of fair use. A lot of people on the Internet, and even in real life, think that they know what fair use is. Most of them are wrong. It’s time to debunk some of the popular myths about fair use.
“Parody is a fair use.” This is incorrectly stated. First, fair use is a multi-factor balancing test, in which judges or juries weigh a number of relevant issues. The first of those factors is “the purpose and character of the use.” This is sometimes stated as analyzing whether the work is “transformative,” and parody, when done properly, is a transformative use. So, if a defendant has actually created a parody, then this factor will weigh in favor of a fair use defense. However, it is only one factor among many.
“I didn’t make any money, so it’s okay.” Unlike the first myth, this is just flat-out wrong. An additional part of the first factor looks at “whether the use is of a commercial nature or is for nonprofit educational purposes.” So, not making money isn’t the issue, nor is intentionally not making money. Rather, a defendant must be not making money for the right reasons. And even then, it’s only a help to a fair use defense, not a guarantee.
“It’s just a history book. No one can copyright history.” The second fair use factor looks at “the nature of the copyrighted work.” Works that are more creative, like symphonies or science fiction novels, are more immunized from fair use than biographies or science textbooks. Nevertheless, while it’s true that facts, in themselves, are not copyrightable, the way that people recount those facts is protectable by copyright. No two history books are going to look exactly alike. And if they do, then there’s probably a lawsuit involved.
“You can copy 10 seconds/5 lines/etc. without it being copyright infringement.” With even a moment’s thought, this is silly on its face. A creative video may only be 10-20 seconds long. A poem may be five lines long – or fewer. They are still perfectly valid as copyrightable works. But even in longer works, there is no “safe” amount that one may copy and have a guaranteed fair use defense. The third fair use factor is “the amount of the portion used in relation to the copyrighted work as a whole.” So, yes, all else being equal, taking 10 seconds from a 2-hour movie is less bad than taking 10 seconds from a 30-second video. However, not all 10-second increments are created equal, and copying really important moments, however short, can be very bad for a fair use defense.
“The copyright owner wasn’t doing anything with it, anyway.” Again, there is a hint of accuracy here. The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” In essence, the court looks at the harm to the copyright owner’s bank account. But the focus is not only on actual uses in the present, but also on likely market avenues in the future. If the copyright owner could easily enter a particular market, then his failure to do so is not likely to be counted against him. Also, one never knows what a publisher or studio has planned behind closed doors. In today’s entertainment industry, reboots and remasters abound.
Fair use is a complex, multi-faceted subject not given to short, easy answers. Make sure you have all of the relevant information before taking action.