What is the fair use defense?

Many times, I get asked by clients if they can use someone else’s intellectual property because it’s “fair use.” This term gets thrown around a lot – as if it were some kind of legal permission slip to infringe upon another’s intellectual property without repercussion. Before you can even begin to unpack whether a fair use defense is available to you, it’s important you really understand what it is.


To be clear, if the unauthorized use of another’s intellectual property is deemed “fair use,” that doesn’t mean the use is inherently allowed. Instead, fair use refers to a legal defense afforded to someone who has been sued for, most commonly, copyright infringement. Simply put, the fair use defense permits the unlicensed use of copyright-protected works, even though that use of the work might not be allowed or even, expressly prohibited, by the owner.


Section 107 of the Copyright Act provides the framework for determining whether an unauthorized use would be classified as fair use by identifying types of uses: criticism, comment, news reporting, teaching, scholarship, and research. These are examples of activities that may qualify as fair use, depending upon further examination and evaluation. Typically, it is a judge who will make the final determination as to whether certain uses qualify as fair use. This defense creates a limitation to copyright protection that is intended to balance the interests of copyright holders and the ability to use creative works. Without this defense, any use of copyrighted material without permission or license by the owner could be deemed actionable infringement.


So, what does that mean to someone who doesn’t speak lawyer? Let’s use an example. Say you’re a teacher. You decide to show a movie in class today. You want to keep it somewhat educational, so you show the BBC program, Blue Planet. You grab the DVD (or I suppose it’s more likely to be through the Netflix app these days), pop it in, and play the film. The students are happy, and you are happy because you are able to catch up on grading some papers and get home at a reasonable hour. If you’re a teacher, I bet you can probably relate to this and are nodding your head. But, I bet not a lot of teachers would question the legality of doing what they did. Technically speaking, you violated someone’s copyright by playing the film. “What the heck? How did I do that?” you ask. Well, copyright is a very broad term that covers a lot of stuff. It’s more like a bundle of rights that protects everything from artwork to software. One of those rights is being able to make money off the stuff you create. In this example, the stuff created was the video you just showed to your class, and the one who created it is the BBC. Copyright lets them, and only them, use their movie in the ways they see fit.  If someone uses it without their permission, they can sue them for copyright infringement.


Why aren’t more teachers freaking out about showing movies in their classrooms? Because of the fair use defense. One of the uses covered as a “permissible use” of someone else’s material is for teaching. In this case, the teacher showed it for an educational purpose and wasn’t making any money off it. And BBC knows this kind of use is going to happen. Hence why it’s not going to go around suing people for doing this. They know if they do, the teacher is going to say it’s fair use and a judge will agree. This example is just one of many types of fair use that fall under the defense.


I know what you’re thinking. You’re thinking, “That’s great! So, I’m a teacher, and because of that, I can always show movies to students without worrying about a lawsuit.” And you’d be wrong. The reason fair use is so tricky, is because of the facts surrounding how the copyrighted material is used, matter. One little change in facts can take use from being squarely within the fair use defense to being infringement. And copyright infringement suits have big consequences. Most copyright infringement lawsuits provide statutory damages to the winner. This means that there is an amount of money literally written into the law that requires you pay a certain amount of money for every time you infringe. This can often be in the tens of thousands of dollars.


That’s why it’s so important to not take chances when it comes to using someone else’s intellectual property, especially if you are in the business of content creation/reproduction. People using social media apps like Instagram and Facebook to generate income and run businesses are becoming savvier when it comes to the laws on reposting/publishing original content. Earlier established accounts like @Fuckjerry and @thefatjew who made millions of dollars off using unlicensed copyrighted material to re-posting then sell may have been able to get away with that behavior when social media etiquette hadn’t been established. But, as for the legality, that behavior has never been legal. And you better believe businesses are now willing to sue to protect the content. That’s why simple attribution isn’t always enough. The context in which you use someone else’s content matters and the ramifications of unauthorized use can be huge. A seasoned intellectual property attorney can be helpful in helping you decide whether your intended use of someone else’s material is worth the risk.

(fair use image by: Electronic Frontier Foundation)