[HELPFULAW FOR THE INDIE ARTIST is a monthly advice column on legal matters pertaining to the music industry. If you have a suggestion for a future article that you would like to submit to our columnist, entertainment attorney and indie artist Christiane Cargill Kinney, please feel free to leave them in the comments section below or send them to her at Christiane.Kinney@leclairryan.com. You can also follow her on Twitter @musicalredhead for more helpful indie-artist tips.]
Q: I have an original copyrighted song recording that I’d like to synch to the opening title visuals of an HBO Show and post on YouTube. I’ve seen this done before, and in fact, one of the videos had a copyright disclaimer saying it was for Entertainment Purposes Only and is protected under the “Fair Use Law.” Could you please comment on that and tell me whether or not I would be infringing on any copyrights if I did this?
A: We’ve talked a lot about U.S. Copyright law, and the exclusive rights given to copyright owners under the Act. Now it’s time for us to talk about one of its major limitations: the “fair use” doctrine.
So many of you have written in with questions about “fair use,” that I’m finally answering the call of the “Indie Revolution!” Yes readers, that’s your new nickname. It was between that and “Twindies” (short for “Indies on Twitter”); I thought “Indie Revolution” sounded hipper, and may also lend itself to a flag, motto, and theme song later down the line. But I digress ….
“Fair use” is one of those unusual areas of law where I won’t be able to give you a black and white rule for guidance. However, I’ll do my best to explain the doctrine and help shed some light on its complexities, so you have a better idea of what it is, and when it may apply.
In simple terms, the doctrine of “fair use” states that certain uses of copyrighted materials are “fair,” and not copyright infringement. There are six major categories of fair use: criticism, comment, news reporting, teaching, scholarship, and research. Rather than simply applying the doctrine to every use that falls within one of these six categories, Courts weigh four factors in determining whether “fair use” should apply to a given case:
* The Purpose and Character of the Use;
* The Nature of the Copyrighted Work;
* The Amount and Substantiality of the Portion Used; and
* The Effect of the Use Upon The Potential Market.
There, now it’s as clear as the lyrics to “Blinded by the Light,” right? Let’s take a deeper look at what these four factors mean, to help get some clarity.
#1 – The Purpose and Character of Use
First, Courts look at “the purpose and character of the use, including whether such use is of a commercial nature or for non-profit educational purposes.”
One of the “fair use” myths floating around, probably because of how the first and fourth factors are phrased, is the notion that any non-commercial use is automatically considered “fair.” Sorry to say, it’s not true. If the use is not commercial, this is one factor that may ultimately weigh in favor of “fair use,” but it’s not absolute. Courts have also found “fair use” to apply when the use is commercial / for profit.
In looking at the purpose and character of use, what Courts are most interested in is whether the use is “transformative.” In other words, does your usage “transform” or alter the original work through new expression, meaning, or message? If it does, “fair use” is more likely to apply.
#2 – The Nature of the Copyrighted Work
Second, Courts looks at the “nature” of the copyrighted work. For example, is the work being used fact or fiction? If the work is based on fact, it is more likely to be considered “fair use,” especially when there are only a few ways to express those facts. If the work is fiction, or involves more creativity on the part of the original author, “fair use” is less likely to apply.
Courts also look at whether the original work has already been published or not. In other words, has the creator shared it with the world yet? “Fair use” may apply to published or unpublished works; but since copyright owners have a right of “first publication,” use of an unpublished work generally weighs against a finding of fair use.
#3 – The Amount and Substantiality of the Portion Used
Third, Courts look at the amount and substantiality of the portion used in relation to the copyrighted work as a whole. In other words, did you take a substantial amount of the original work?
Another popular myth floating around is the notion that there is some magic amount of time that constitutes “fair use.” I have received questions about “the five second rule,” the “thirty second rule,” the “four second rule,” the “four note rule,” etc. Just to clarify, the “five second” rule only applies to food on the floor; never to art. The “thirty second” rule only applies in bed when, oh never mind. There is no specific quantity of words, lines, notes, or seconds from a piece of music that can safely be lifted from someone else’s copyrighted work without permission (except perhaps the “one note” rule, because who’s really going to notice?)
Using a small portion of a copyrighted work may weigh in favor of “fair use.” Then again, there are times where only a small amount of the work is taken, and Courts refuse to apply “fair use” because that small amount is considered the “heart” of the original work.
Now, some of the “Indie Revolution” have raised questions about parodied works, and it’s worth noting that in a parody, you are allowed to copy as much as needed to “conjure up” the original work, including copying the “heart” of that work, as long as it’s the “heart” at which the parody is aimed.
#4 – The Effect of the Use on The Potential Market
Fourth, Courts look at the effect of the use on the potential market. In other words, did your use of the original work cause significant financial harm to the copyright owner? Obviously, if your use is taking money out of the pocket of the copyright owner, “fair use” is less likely to apply. On the flip side, the more the new work differs from the original, contains new content, or appeals to a different audience, the more likely it will be considered fair use.
So, What Does This All Mean?
I think most attorneys can agree that trying to explain the doctrine of fair use can be about as confusingly complicated as Jedi Master Qui-Gon Jinn trying to explain Midi-chlorians to Anakin Skywalker. The main point to take away from this is that “fair use” is a delicate balancing act between these four factors, and no single factor is definitive.
Now that you have these four factors in mind, let’s go back to the original question raised relating to synching an original song with clips from a copyright-protected HBO show, so you get an idea of how this all applies in a particular case.
What are some of the points weighing in favor of “fair use”? Well, it’s being used on YouTube, and assuming the songwriter is not attempting to monetize the clip, it appears that the work is not for a commercial purpose. Likewise, they are using a small portion of a published work – the title credits – which are not likely to be considered the “heart” of the work itself. There’s probably no negative impact on the potential market for the copyrighted work either; in fact, one might argue that this proposed usage is a form of free advertising for the show, which may help increase the show’s existing fan base. Likewise, if the producers of the show participate in YouTube’s Content ID program, they may even be able to make money off of the video through advertisements. Sounds pretty good, right?
Now, what are some of the points weighing against “fair use”? Well, first and foremost, it doesn’t sound like the proposed use falls within any of the six major categories of “fair use” identified under the Copyright Act (e.g., criticism, comment, news reporting, teaching, scholarship, or research). For this reason alone, I would steer away from relying on “fair use” in this situation. It also doesn’t sound like your use of the work is “transformative” in nature; you’re simply changing the music to the original title credits. Likewise, unless you’re using the title sequence to a heavily fact-based HBO show, like “True Blood,” (everyone knows there’s vampires in Bon Temps), you’re using someone else’s fictional, creative work, which is less likely to be considered “fair use.” Also weighing against a finding of “fair use”: there is a reasonably available licensing mechanism (synch licensing) to use the copyrighted work (though Courts will consider whether the license fee is affordable). Another factor weighing against “fair use”? You’ve made the title credits accessible over the Internet, which may lessen its value. It probably was available anyway, but if not, that would certainly weigh against a finding of “fair use,” particularly since HBO is a subscription-based channel.
Now do you see why “fair use” can be challenging to apply? When a rule of law requires Courts to weigh factors on a case-by-case basis, the attorney with the best / most creative argument often wins. This can result in inconsistent rulings, making it even more difficult to gauge how the doctrine might be applied in a particular case.
When dealing with “fair use” on the Internet, you should also consider that popular websites like YouTube and Vimeo are not the Courts. Even if the four factors of “fair use” weigh heavily in your favor, these websites will remove and ban your video upon receipt of a “take-down” notice from the copyright owner without further analysis. In that situation, you have to get the copyright owner’s permission to try to get the video back up. Even if “fair use” clearly applies, these user-generated content sites won’t get involved in a legal analysis of “fair use,” as it exposes them to potential liability once a “take-down” notice has already been received.
Every “fair use” case is unique, and requires a detailed and thoughtful analysis. As I’ve said before, the safest course is to get permission from the copyright owner before you use someone else’s copyrighted work. If you can’t get permission, you should avoid using that person’s work unless the doctrine of “fair use” or another exception clearly applies. Even then, “fair use” is a defense to a copyright infringement action; it doesn’t mean you can’t be sued.
So, let’s do a quick recap on what we’ve learned about “fair use”:
* In certain situations, fair use may allow people to use a portion of a copyrighted work without a license or permission. However, it is not a catch-all defense to copyright infringement, and application of the doctrine can be quite complex.
* The first thing to consider is whether your proposed usage falls under any of the six major categories identified as “fair use”: criticism, comment, news reporting, teaching, scholarship, or research. If it doesn’t, then it’s not fair use.
* If your proposed usage falls under one of those six categories, a detailed analysis should be undertaken, weighing the four factors we discussed in this article. I highly recommend that you don’t undertake this analysis by yourself! This article is intended as a general guideline for you to better understand this complex area of law. However, “fair use” has been developed extensively through case law over the years, and should be evaluated by an attorney familiar with this area.
And now, for your Entertainment Purposes, here’s some fine print.
© 2012 Christiane Cargill Kinney. All rights reserved. This Blog contains information of a general nature that is not intended to be legal advice and should not be considered or relied on as legal advice. Any reader of this Blog who has legal matters involving information addressed in this Blog should consult with an experienced entertainment attorney. This Blog does not create an attorney-client relationship with any reader of this Blog. This Blog contains no warranties or representations that the information contained herein is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. Viva the #IndieRevolution! Christiane Cargill Kinney is a Partner and Chair of the Entertainment Industry Team of LeClairRyan, LLP.
[Image of thief stealing idea from Shutterstock.]