17 U.S. Code § 107 - Limitations on exclusive rights: Fair use [Four Factor Test]

THINGS THAT CAN BE SUBJECT TO COPYRIGHT PROTECTION (ORIGINAL WORKS OF AUTHORSHIP, FIXED IN A TANGIBLE MEDIUM OF EXPRESSION).

• Photograph
• Images
• Illustrations
• Paintings
• Art
• Music
• Lyrics
• Videos
• Books
• Jewelry
• Architect plans
• Fashion designs
• Computer programs
• Sculptures (ex. award trophies)
• Mobile applications
• Company logos
• Masks/Costumes
• Cheerleader Uniforms
• Anything creative fixed in a tangible form

FAIR USE EXAMPLES

A. Fair use NOT found (risk of monetization, DMCA strikes, Channel takedown, lawsuits)

1. Dr. Suess vs. ComicMix, LLC (Oh, the places you will boldly go). Dr. Suess/Star Trek mashup.

Problems: Copied highly creative style, did not make parody (no critique commentary), trading off Dr. Suess brand. Hurts Dr. Suess "derivative" market. Barely changed title. Heart of the works. Mimic and Parallel is not fair use.

2. Golden (Declaratory Judgment) vs. Grecco (counterclaim) - Xena the princess warrior. Unlawful use of a photo on a pop culture (news) type blog.

Problems: Not transformative (did not change it from promotional use to historical artifact), apology and removal not a defense, image was unaltered. The entire image was used. There was some evidence of Grecco licensing (potential harm to his market).

3. Andy Warhol Foundation for the Visual Arts (Supreme Court case) - improper use of Prince image/silkscreen prints.

Problems: Adding orange (new expression) does not necessarily make it fair use (not transformative). No new meaning/message. No distinct meaning from the original source material. Prince photo was creative and unpublished by Goldsmith (licensed to Vanity Fair). Both parties are in the business of licensing. Essence of the work was copied.

4. Elvis Presley Enters., Inc. v. Passport Video (Elvis video clips and photographs infringed)

Problems: Plaintiffs' video clips made up at least 5% to 10% of The Definitive Elvis, often overlaid with narration or commentary. The commentary was not always directly related to the video clips. The Definitive Elvis was clearly commercial in nature, and was not a scholarly critique or historical analysis. Nor was the use consistently transformative, as the film clips were used in excess of the purpose of citing them as historical reference points in Elvis' life. The court noted that many clips were repeated multiple times, some long, and some were the heart of the work.

5. Penguin Group vs. Am. Buddha (improper digitizing and publishing of complete text)

Problems: Mere formatting changes not enough to qualify as transformative. Nothing more than repackaging and reproducing work in its entirety.

Tip: Use small quotes pertaining to your video. Quote your sources.

B. Fair use found (no infringement)

1. Obama art - Street artist Shepard Fairey and The Associated Press (settlement?)

Is this transformative? New meaning? New message?

2. Two Live Crew - Campbell v. Acuff-Rose Music, Inc. - Oh Pretty Woman (parody ok) - United States Supreme Court

Watch video here.

Tip: Use just enough of the original to conjure up the original. Make fun of the original (parody vs. satire).

The Supreme Court then looked to the new work as a whole, finding that 2 Live Crew thereafter departed markedly from the Orbison lyrics, producing otherwise distinctive music.

Looking at the final factor, the Supreme Court found that the Court of Appeals erred in finding a presumption or inference of market harm (such as there had been in Sony). Parodies in general, the Court said, will rarely substitute for the original work, since the two works serve different market functions.

WEIRD AL - Used to seek permission.

3. Bouchat v. Balt. Ravens Ltd. P'ship (similar Ravens logo was fair use)

Plaintiff Bouchat drew and proposed a team logo for the Baltimore Ravens. In 2000, the Fourth Circuit held that the Ravens' use of a similar logo design between 1996 and 1998 infringed Bouchat's copyright. In 2012, Bouchat initiated this action against the Ravens and various NFL-affiliated entities, alleging that defendants infringed his logo by using it in three videos featured on defendants' television network and various websites and by displaying images that included the logo as part of “historical exhibits” in the Ravens' stadium's “Club Level” seating area. The district court ruled that defendants' use of plaintiff's logo in both settings was fair use. Bouchat appealed.

Court holding (hometown "justice"?):

The logo's brief appearances in the three videos at issue served the transformative, historical purpose of “tell[ing] stories of past drafts, major events in Ravens history, and player careers.” The court further found that, although the work was creative in nature and used in its entirety, the “fleeting” nature of its appearances in the videos gave these factors “very little weight.” Finally, the court found that defendants' use of the logo was unlikely to supplant any market for the original work. The court held that the use of the logo on images displayed in the Ravens' stadium's “Club Level” seating area was also fair use. The court found the defendants' use transformative, as it was “designed merely to preserve a specific aspect of Ravens history.” The court also found the use to be an “incidental component” of the historical exhibits at issue. The court did not consider evidence of market harm to plaintiff, but noted that findings in plaintiff's favor on this point would be insufficient to overcome the substantial weight of the first three fair use factors.

FAIR USE TIPS FOR CREATORS

From U.S.C.O. website.

Here are some of my top tips to try to qualify for fair use protection. Remember, it is always best to get permission or find an image in the public domain, or use is allowed by Creative Commons license. If not, keep these factors in mind

1. Always use only the "minimum necessary" to tell your story

2. If you are using a photo try to modify or crop the photo and be sure to comment on or criticize the image

3. For third party videos, use 2-5 seconds if possible

4. Consider use of a fair use disclaimer at the end of the video

5. Don't forget full attribution at the end of your video

6. Try not to use more than one of the third party's clips

7. Keep in mind you want to TRANSFORM the original (give new meaning or purpose to the content than the original did)

8. Do not disparage

9. Parody is a great way to get fair use (but you MUST make fun of the original)

10. Fair use opinions can help you (innocent infringement defense)

11. Be aware of the BIG BRANDS (ESPN, Disney, Universal, Recording Industry, etc.)

12. Document your fair use analysis (innocent infringement)

13. Check case law in your jurisdiction (courts can differ)

ANOTHER IMPORTANT POINT - REMOVING COPYRIGHT MANAGEMENT INFORMATION ("CMI")

Sometimes, I have a client tell me that they removed a watermark or cropped out the copyright symbol and authors information before posing the photo, image or video clip on their website. This is not a good idea. Even if your final piece qualifies for fair use, you may have a separate problem under 17 U.S.C. 1202 for removing copyright management information.

So, what exactly is the definition for "copyright management information?"

POTENTIAL PENALTIES FOR A 1202 VIOLATION

A defendant in a copyright 1202 case can face the following damages and penalties:

(a) Civil Actions.— Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation.

(b) Powers of the Court.—In an action brought under subsection (a), the court—

(1) may grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation, but in no event shall impose a prior restraint on free speech or the press protected under the 1st amendment to the Constitution;

(2) at any time while an action is pending, may order the impounding, on such terms as it deems reasonable, of any device or product that is in the custody or control of the alleged violator and that the court has reasonable cause to believe was involved in a violation;

(3) may award damages under subsection (c);

(4) in its discretion may allow the recovery of costs by or against any party other than the United States or an officer thereof;

(5) in its discretion may award reasonable attorney's fees to the prevailing party; and

(6) may, as part of a final judgment or decree finding a violation, order the remedial modification or the destruction of any device or product involved in the violation that is in the custody or control of the violator or has been impounded under paragraph (2).

(c) Award of Damages.— (1)In general.—Except as otherwise provided in this title, a person committing a violation of section 1201 or 1202 is liable for either—

(A) the actual damages and any additional profits of the violator, as provided in paragraph (2),

or

(B) statutory damages, as provided in paragraph

(3)

(2) Actual damages.— The court shall award to the complaining party the actual damages suffered by the party as a result of the violation, and any profits of the violator that are attributable to the violation and are not taken into account in computing the actual damages, if the complaining party elects such damages at any time before final judgment is entered.

(3) Statutory damages.

(A) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1201 in the sum of not less than $200 or more than $2,500 per act of circumvention, device, product, component, offer, or performance of service, as the court considers just.

(B) At any time before final judgment is entered, a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000.

(4) Repeated violations.— In any case in which the injured party sustains the burden of proving, and the court finds, that a person has violated section 1201 or 1202 within 3 years after a final judgment was entered against the person for another such violation, the court may increase the award of damages up to triple the amount that would otherwise be awarded, as the court considers just.

(5) Innocent violations.— (A)In general.— The court in its discretion may reduce or remit the total award of damages in any case in which the violator sustains the burden of proving, and the court finds, that the violator was not aware and had no reason to believe that its acts constituted a violation. (B) Nonprofit library, archives, educational institutions, or public broadcasting entities.—

FAIR USE RESOURCES

1. United States Copyright Office (Fair Use Index)

2. Copyright Small Claims Board

3. Stanford Fair Use Center

4. Creative Commons

5. Public Domain