If anyone ever claims copyright infringement, that’s a serious allegation and can result in significant legal problems to an offender. However, there are certain defenses that can be taken into consideration if there is ever a question of copyright infringement. One is “fair use.” “Fair use” exists to promote criticism, comments, reporting, teaching, scholarship, and research. Within these criteria, there are policy considerations in play so that society can further build upon ideas, innovations, education, and more. But it is highly debated, and these often become cases that are often highly litigated.
Thus, prior to taking “fair use” to mean that there is a right to take and use another’s work, please use caution. “Fair use” is a defense. Defenses are just that, a defense to a claim. They are not an affirmative right to do something, so please keep that in mind if you think there is a question of infringing on another’s copyright. Of note, this blog should not be construed as legal advice or a recommendation to do or refrain from doing something. It is rather for a general discussion on some of the nuances and cases that come up on this topic.
Under 17 U.S.C s. 107, the “fair use” of a copyright includes, the “reproduction in copies or phonorecords or by any other means specified . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, [and / ] or research . . .” (underlines added).
However, certain criteria, or factors, must be considered under the statute:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
So, how does one distinguish between what is actual infringement or something that is “fair use”?
Some U.S. Supreme Court cases help clarify this question and provide relevant examples, and the U.S. Copyright Office has an index for quick reference on case law distinguishing between infringement and “fair use.” This isn’t an all inclusive index of cases, but it is a very helpful tool for a quick snapshot of cases.
See this link: https://www.copyright.gov/fair-use/
Per the U.S. Copyright Office, “the goal of the Index is to make the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use (e.g., music, internet/digitization, parody).” This makes research a little bit easier, especially if you do not have access to Westlaw, Fast Case, or other subscription services.
Within the index, you can sort the search criteria by jurisdiction and topics/categories. Examples where this comes up are computer programs, education, film, music, news, art, etc.
Let’s look at television and recording devices. This is known as “space shifting.” Instantly, this case comes up: Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984). An index card will come up giving you a half page summary and take-away from the case (this type of index card would have been great during law school, right?). In Sony, Universal and Disney sued Sony for infringement as Sony manufactured and sold recording devices, which the public used to record programs and then watch later. The issue was whether this practice of recording and watching later (“time shifting”) was “fair use.” The court held that this was “fair use” as the practice was a non-commercial home recording of broadcasts that were already free to the public. What harm would it be to record and watch later? The nature of the use (the second factor) was fair.
See the index card here: https://www.copyright.gov/fair-use/summaries/sonycorp-universal-1984.pdf
Now, let’s look at photography under U.S. Supreme Court cases. The most recent Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258 (2023) case comes up. The foundation for the deceased artist, Andy Warhol, petitioned the Court for review of a caw concerning Goldsmith (a photographer) who took photographs of Prince. Goldsmith took photos of Prince in 1981 and, in 1984, granted a limited one time use license to Vanity Fair to use a photograph. Vanity Fair then gave the photograph to Warhol, who produced an illustration and series of work that was also used in the magazine. Later, after Prince’s death, the parent company of Vanity sought to republish some work. The Warhol foundation licensed a work from the print series to use. Then, Goldsmith found out about the Prince Series and alleged copyright infringement. The foundation filed a declaratory judgment action, and Goldsmith countersued for infringement. The case got up to the U.S. Supreme Court on the issue of whether a derivative work with a purpose and character different than the original work constituted infringement or not.
The Court focused on one of the first factor within the statute: “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” The Court reasoned that the 2016 license to the magazine was not for a different purpose and that such transformative work infringed the original copyright owner’s ability to create derivative works from the photograph. The factors must be weighed against the commercial issues at stake for the owner. If the secondary work is sharing the same or very similar purpose then it effects the original copyright holder’s right to benefit from the photograph absent a justification or agreement to create such derivative work. Thus, there was no “fair use” here.
See the index card here: https://www.copyright.gov/fair-use/summaries/Andy-Warhol-Found-for-the-Visual-Arts-Inc-v-Goldsmith-143-S-Ct-1258-2023.pdf
Finally, let’s look at computer programing. See Google LLC v. Oracle Am. Inc., 141 S. Ct. 1183 (2021). This is a case where all of the above factors were reviewed.
For its Android devices, Google copied up to 11,500 lines of code from Oracle’s Java SE software (Oracle owns the copyright to Java SE). The issue that reached the U.S. Supreme Court was whether copying code and structure from an existing platform to use in new software was “fair use.”
For the first factor, the purpose and character, the Court noted that the use of the code was more transformative and allowed the programmers to use their existing Java skills to build something new.
On the second factor, the nature of the work, the Court found this factor favored fair use because the code was “functional in nature” and was unlike many other computer programs. The code was bound together with ideas (that cannot be copyrighted), methods, and implementation.
Additionally, its value comes from the programmers who invest their own time and effort.
On the third factor, the amount of the portion used, the Court found that the borrowed code was actually less than 1% of the entire Java SE platform. It was also transformative as it allowed programmers to use their knowledge.
Finally, on the fourth factor, the effect on the market, the Court noted that Oracle and Android were in different markets. Further, the public benefits outweighed any dollar amount in damages. The Court did not want Oracle having too much control over the development of new types of applications and potential uses. Programmers were accustomed to the type of code used as well.
The Court said that Congress’ intent wasn’t for copyright to be used as a manner to “stifle innovation.”
Of note, there is no right to a jury trial on questions of fair use as they are purely a legal matter up for a judge to decide.
See the index card here: https://www.copyright.gov/fair-use/summaries/Google-LLC-v-Oracle-Am-Inc-141-S-Ct-1183-2021.pdf
In sum, issues of whether there is “fair use” or infringement are highly debated and contested. When there is a commercial use or benefit at stake, it’s best to communicate with the copyright owner right away to get permission, or the issue of litigation may be front and center. Keep in mind, there are multiple levels of court review, and the issue may be spent in court for years getting worked out. While there are defenses to such use in the realm of copyright law, it’s best to work across party lines and perhaps strike a mutually beneficial agreement or license. Or, perhaps there is innocent infringement and the parties maybe never actually thought there may have been infringement in the first place. It happens. However, it’s always best to run anything that may be subject to copyright law (or other forms of intellectual property law) through legal counsel first.