FAIR
USE AND ITS LIMITATIONS
The Fair Use Doctrine and Its Availability to
Motion Picture Producers
By Brandon A. Blake,
entertainment attorney
The fair use doctrine of the U.S.
Copyright
Act provides that under certain situations, the owner
of copyrighted material, whether that is literature,
music, or visual art, does not have to consent to the
use being made of his or her work. In other words, the
use of copyrighted music without permission is
infringement under section 106 of the Copyright Act,
but section 107 permits fair use of copyrighted
material in some instances. The doctrine of fair use
requires the filmmaker to meet four factors regarding
the use of the copyrighted material, and regarding the
effect the use will have on the market for the
copyrighted work.
The Fair Use Doctrine
The Copyright Act sets out that notwithstanding
section 106 and the exclusive rights given to owners
of copyrighted works, the fair use of a copyrighted
work, including use by reproduction in copies for
purposes of critique, comment, news reporting,
teaching, scholarship, or research, is not an
infringement of copyright. (17 US Code Section 107).
In determining whether the use is a fair use of a
particular work the factors to be considered include;
1) the purpose and character of the use; 2) the nature
of the copyrighted work; 3) the amount and
substantiality of the portion used; and 4) the effect
of the use on the potential market of the copyrighted
work. The United States Supreme Court has decided
three major cases invoking fair use since 1984, and
each time it applied and considered each of the four
statutory factors in arriving at a holding.
Factor One: The purpose and character of use
The first factor of the fair use doctrine in the
Copyright Act analyzes the purpose and character of
use, including whether such use is of a commercial
nature or is for non-profit educational purposes. (17
US Code Section 107(1)). There are two parts to the
first factor; 1) whether a use is referred to in the
first sentence of Section 107 (criticism, comment,
news reporting, teaching, scholarship, or research)
and is therefore a productive use; and 2) the question
of whether a publication was commercial as opposed to
non-profit. This question of commercial versus
non-profit use tends to weigh against a finding of
fair use, specifically, when the user stands to profit
from exploitation of the copyrighted material without
paying the customary price. (Harper and Row, 471
US at 542—43)
The court de-emphasized the listed purposes in
Section 107, placing them on a level no higher than
the four enumerated factors when it addressed fair use
in the Harper and Row case. The list of
purposes was not meant to be exhaustive. The Court
also refused to acknowledge any definite fair uses,
remarking that the drafters of section 107 intended to
create only an affirmative defense, and one that would
have to be analyzed on a case-by-case basis.
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Factor Two: Nature of the copyrighted work
The second factor addresses the nature of the
copyrighted work. (17 USC S 107(2)). The Court
significantly filled in this provision, holding that
the law generally recognizes a greater need to
disseminate factual works than works of fiction or fantasy.
Factor Three: Amount and substantiality of use
The third factor of the fair use provision requires
the court to look at the amount and substantiality of
the portion used in relation to the copyrighted work
as a whole. (17 US Code Section 107(3)). The copying
of works compiled in larger works in their entirety
demonstrated using a portion that was too large to be
considered fair use. American Geophysical Union, et
al. v. Texaco, Inc., 60 F.3d 913, 921 (2d Cir. 1994).
In American Geophysical Union v. Texaco, the
defendant Texaco, routinely copied entire articles
from scientific journals for the use of their research
scientists. This use is analogous to the copying of an
entire song from a recording of a number of different
songs.
The Supreme Court significantly filled in the third
factor in American by agreeing with the
conclusion drawn by the district court that copying a
whole article was an obvious violation of fair use.
While the entire journal was not copied, entire
articles in the journals were copied, which was
sufficient because the individual articles were
copyrighted.
Factor Four: Effect of the use upon the
potential market
The copyright statute requires a court to look at
the effect of the use upon the potential market for or
value of the copyrighted work. (17 US Code Section 107
(4)). Fair use is limited to copying by others that
does not naturally impair the marketability of the
work copied. Harper and Row, 471 US at 542;
Campbell, 510 US at 570. A showing that if
a use became widespread it would adversely affect a
potential market of the copyrighted work would negate
the fair use defense. A work carrying a stated or
negotiated selling price in the market is less likely
to be fair use, and the negative affect of the
hypothetical widespread use of the practice is a
legitimate course of inquiry. American, 6 F.3d
at 921. Inquiry into the effect on the potential
market looks at: 1) the potential reduction of the
sales of the allegedly infringed work; and 2) the
potential loss of revenue from the allegedly
infringing acts. In addressing the fourth factor, the
Court has focused on the loss established by the
infringing act, and also on the loss from a
hypothetical expanding of this type of use. (Harper
and Row, 471 US at 542)
Summary
Fair use is not the broad exception to
copyright law that legal scholars once thought it
might become. Notably for documentary makers and
student filmmakers, the fact that a film is made as
part of a grant project or for class credit, or for
use only in film festivals, does not necessarily
exempt the filmmaker from obtaining all of the
normally required licenses. For example, the very
existence of festival rights for music makes it
unlikely that any use by a filmmaker of a song will be
a fair use if exhibited in a film festival.
Additionally, film festivals are far from the
non-profit forums that they are often portrayed to be.
Unless the filmmaker’s work is a narrowly conceived
documentary or experimental work produced for an
educational or non-profit purpose, and made without
broad commercial distribution in mind, the fair use
doctrine will most likely not be available.
Acknowledgments: Harper and Row,
471 US at 542-43; American Geophysical
Union, et al. v. Texaco, Inc., 60 F.3d 913, 921
(2dCir. 1994).
© COPYRIGHT
2006 BLAKE & WANG, P.A. entertainment attorney
SERVICES. ALL
RIGHTS RESERVED.
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