Law for Artists: Fair Use

The use of protected works balances unevenly between the First Amendment and the Constitution's copyright clause
Cara Huffmann

Copyright law can be confusing, especially with the abundance of misinformation circulated. In a perfect world, artists, art dealers, art lovers, and everyone else in the art community would live in harmony and there would never be any conflicts. Unfortunately disagreements do arise. Therefore, in the event of a copyright conflict, artists should be aware of what their rights are. This series of articles will explain, generally, the basics of copyright law for artists.

Part III: Infringement and Fair Use

The owner of a copyright is entitled to five exclusive rights: reproduction, derivative works, distribution, public performance and public display. Therefore, if anyone violates any of those rights, or uses the work without the owner’s permission, that person is liable for copyright infringement.

Just because the original artist was credited, it’s not automatically fair use.

Most copyright infringement violates the right of reproduction, and it’s usually for less than a verbatim copying of the entire work. Therefore, in a copyright lawsuit, the court will look at two things: did the defendant (the person accused of the infringement) have access to the plaintiff’s (the original copyright owner’s) work, and are the two works substantially similar. Different court systems analyze whether or not the works are substantially similar differently, but all agree that there must be some modicum of likeness to find that infringement occurred. It’s important to note that even though most copyright lawsuits deal with the right of reproduction, violation of any of other rights qualify as infringement as well.

If it is proven that a defendant infringed on a plaintiff’s copyright, there are limited circumstances where the defendant may not be liable for—guilty of—the infringement because there exists some defense, the most notable being Fair Use. Fair Use attempts to balance the conflict between the First Amendment’s right to free speech and the Copyright Clause in Article I of the U.S. Constitution. The Fair Use defense is very murky without a lot of bright lines or clear legal guidance. Therefore, claiming that a use is “fair” should be done so with great caution.

According to Section 107 of the Copyright Act of 1976, fair use of a protected work may be made for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Note the term “may.” Uses for the above purposes are not guaranteed to be fair; they just might be. If the defendant asserts a Fair Use defense, the court will look at four individual factors and balance them to determine the winner of the case. Those four factors include:

The purpose and character of the use.

If the use is commercial, or if the defendant was attempting to make money from his/her use, this factor will weigh in favor of the plaintiff. If the use was for non-profit, educational purposes, it will weight in favor of the defendant.

The nature of the copyrighted work.

This factor considers whether or not the plaintiff’s work was creative or factual as well as whether or not it’s published (offered for sale or distribution). If it’s creative or unpublished, this weighs in favor of the plaintiff. Factual or published works weigh in favor of the defendant.

The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

This factor considers the amount of the plaintiff’s work used by the defendant. The greater the amount taken in both a qualitative and quantitative sense, the more this factor weighs in favor of the plaintiff.

The effect of the use upon the potential market for, or value of, the copyrighted work.

This factor considers whether the plaintiff’s market was negatively affected by the defendant’s use of his/her work, i.e., did the defendant’s work cause a decrease in plaintiff’s sales, did the defendant have the opportunity to license the work from the plaintiff for a fee, etc. Positive effects are not considered. If the plaintiff’s market was negatively affected, directly or indirectly, this factor will weigh in favor of him/her.

Just because a work is being used for non-profit purposes, it’s not automatically fair use.

According to the U.S. Copyright Office, “the distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.” This illustrates a common misconception among artists. Just because a work is being used for non-profit purposes, it’s not automatically fair use. Just because a musician only sampled a small amount of seconds of a song, it’s not automatically fair use. Just because the original artist was credited, it’s not automatically fair use. The only entity that can make a Fair Use judgment is a court, and it does so by balancing the above four factors.

There are very few circumstances where use of a copyrighted work is guaranteed to be fair. The only way to be certain that you are not committing copyright infringement when using someone else’s copyrighted work is by securing protection from the owner. So be careful out there!

Fair Use Examples

 Each case depends on each specific context, and all four factors are balanced, rather than dealt with individually.

 

For more general information regarding anything presented in this article, visit the applicable Circulars presented by the United States Copyright Office.

 

For more general information regarding anything presented in this article, visit the applicable Circulars presented by the United States Copyright Office.

This article is meant for general, informational purposes only and should not be used in lieu of professional legal advice for individual circumstances. Every situation is unique. If you need legal advice, please consult an attorney. This article in no way establishes an attorney/client relationship between its author and reader.

Cara Dehnert Huffman is a lawyer and passionate supporter of the arts. She teaches entertainment law as well as other courses in the Arts, Entertainment and Media Management department at Columbia College Chicago and is a graduate of its Master in Arts Management program. Along with teaching for Columbia College, Dehnert Huffman is the former executive director of I Am Logan Square and has worked for Lawyers for the Creative Arts, the Illinois Arts Council and other creative Chicago organizations.

Published by CAR_Editor on Fri, 12/20/2013 - 2:33pm
Updated on Tue, 07/15/2014 - 8:48pm