Making Fair Use a Little Less Fickle

The Fair Use Doctrine allows you to use a reasonable portion of a copyrighted work without running afoul of copyright law. Within all areas of media, there is constant debate over when a particular use qualifies as a fair use.

Fair Use Is Fickle

There is no bright line rule to determine what qualifies as fair use. Instead, courts use a four-factor test to make the determination.  Essentially, the four factors pose the following questions:

1. Factor One. How are you using the copyrighted work. For example, is your use for-profit or non-profit? Is your use transformative?
2. Factor Two.  What is the nature of the copyrighted work?  In other words, is the copyrighted work very creative or a more fact-based like an encyclopedia that qualifies for a lower threshold of copyright protection?
3. Factor Three. How much of the copyrighted work do you use? There is no set amount of a copyrighted work that guarantees fair use. However, it is true that the less of a copyrighted work you use, the more inclined a court will be to view your use as a fair use.
4. Factor Four. Does your use harm the copyright owner's ability to market the work?

No single factor is determinative. Application of the four factors is subjective and fact specific – even fickle at times.

Making Fair Use Easier to Apply

Hoping to decrease the uncertainty of applying the fair use test, the Center for Social Media and the Project on Intellectual Prop­erty and the Public Interest at American University have worked with filmmakers to develop a Statement of Best Practices in Fair Use. The goal is to build a well-established and well-publicized consensus about acceptable practices under the Fair Use Doctrine and remove some of the uncertainty and confusion surrounding the application of fair use. Designed to assist documentary producers, the Statement of Best Practices of Fair Use has four principles which say it’s okay for filmmakers to take the following actions:

• employing copyrighted material as the object of social, political or cultural critique
• quoting copyrighted works of popular culture to illustrate an argument on point
• capturing copyrighted media content in the process of filming something else
• using copyrighted material in a historical sequence

While the statement alone will not alter the law, it serves as a benchmark to which courts can turn when evaluating the reason­ableness of a particular use. You can find a complete copy of the Statement of Best Practices  of Fair Use here. The statement has experienced some success. One of the most significant successes reported by the Center of Social Media is acceptance of the policy by four of the largest U.S. errors and omissions insurance companies (AIG, MediaPro, ChubbPro, and OneBeacon).

Applying Fair Use to User Generated Content

User Generated Content, which is online content generated by users and hosted or promoted by a third party website such as MySpace and YouTube, is currently testing the limits of the Fair Use Doctrine. In response, the Center for Social Media joined with a number of other organizations including the Electronic Frontier Foundation, Public Knowledge, and American Civil Liberties Union of Northern California to issue another set of Fair Use Principles for User Generated Video Content. You can read the Fair Use Principles for User Generated Video Content here.