Legal Review: Figuring Out the Ever Fleeting Doctrine of 'Fair Use'
1 Aug, 2006 By: Response Contributor ResponseLet's say you're in production on your latest infomercial and you want to show — on screen, just for a few seconds — the cover of a magazine in which your product received a great review. Or perhaps, if you have a celebrity spokesperson, you want to show several magazine shots or covers that featured your spokesperson over the years. Or perhaps, if your host is an athlete, you want to show a clip of the climactic moment when he or she made the impossible game-winning shot to win the championship on national television. You say to yourself, "I'm only going to use it for a few seconds on screen. It's like five seconds in a 28 minute show. It must be fair use, right?"
 Gregory J. Sater |
As an industry attorney who is regularly asked about such matters, I can tell you that, while I wish that there was a black-and-white legal standard that could be applied in every case, such as, "You can use it on screen without any risk of liability as long as you only use it for five seconds or less," the unfortunate reality is that the fair use doctrine is so case-specific that, as one federal court judge has complained, "It's the most troublesome area in the whole law of copyright." As another federal judge has written that the doctrine of fair use "is so flexible as to virtually defy definition."
Judges consider four factors in evaluating whether a use is a "fair use":
1. The purpose and character of the use that was made (with commercial uses, such as television advertisements, being less likely to be found "fair" than non-commercial uses such as university textbooks)
2. The nature of the underlying copyrighted work (with creative works being subject to more protection than non-fiction works that simply recite known facts)
3. The amount and substantiality of the use of the work (with significant uses, such as using a clip of a key moment from a televised sporting event or program, using a key element of a song, or prominently showing an entire photograph or other work of art being less likely to be found "fair" than less significant uses thereof)
4. The negative impact, if any, that the defendant's use might have on the potential market for the plaintiff to itself use or to license rights in the material.
Because of the significant penalties that can be imposed against you for copyright infringement — including injunctive relief, disgorgement of profits, statutory damages, treble damages and prevailing party attorneys' fees — it is advisable to consult with an experienced intellectual property attorney as early in the production process as possible.
You must identify which materials you should try to get clearance for, from the copyright owners. If you cannot or do not wish to obtain such clearance, then you must at least understand and evaluate what your level of risk will be. You also must understand how you might be able to use the materials in a manner that lowers your risk of being sued or increases your chance of prevailing in a copyright infringement case, if you are sued.
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