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DAMIEN ALLEN: Good afternoon and welcome to Traverse Legal Radio. My name is Damien Allen here in studio A, and today on the phone we have Mr. John Di Giacomo from Traverse Legal Radio. Good Afternoon, John. Welcome to the program.
JOHN DI GIACOMO: Good afternoon, Damien, and thanks for having me.
DAMIEN ALLEN: Well, it’s a pleasure to have you. And John’s specialty is copyright law. And today we are talking about copyright fair use. John, what is copyright fair use.
JOHN DI GIACOMO: Copyright fair use is the importation of first amendment values into copyright law. I say the importation because it is a defense and not a right. Fair use in the United States is a very uniquely American concept. It values free speech rights as opposed to other countries like the UK. In the UK, you have the enumerated uses, which are specifically fair use, while in the United States, you have a very ambiguous concept of what fair use means and what it is. I say ambiguous because it’s judge made law. There’s an actual part of the copyright act that states what this defense will be, but it’s also nonexclusive. So, it could be a number of different things that a judge decides.
DAMIEN ALLEN: What’s the problem with fair use?
JOHN DI GIACOMO: Well, fair use is a problem for a lot of clients because it’s one of two areas that are the most ambiguous areas of copyright law. A lot of people think that fair use is, well, fair use, they can point to it, it’s very tangible. But, in fact, it really is not. The best thing about copyright law is that fair use gives arguments to attorneys. In reality the best way to avoid a fair use problem is to just license copyrighted content. In this new world and the web 2.0 world, it doesn’t make much sense for businesses so they usually have to go to an attorney to decide fair use issues before they use user-generated content. In reality, there is no hard and fast rules for fair use, you have to decide it on a case by case basis, and because the factors in the statute are nonexclusive, a judge could look at the factors, decide that it is, in fact, fair use, and yet still find that it isn’t fair use because, in fact, the statute doesn’t really matter. There are some types of areas of fair use that are more protected because they are actually enumerated in the fair use statute. Among these are criticism, commentary, news reporting, teaching, scholarship, and research.
DAMIEN ALLEN: What does someone have to prove to prove fair use.
JOHN DI GIACOMO: Well, there are a number of factors, and like I said before, they’re non-exclusive, but the statute does outline four factors that judges really look towards to decide whether something is fair use. I say, look towards because, again, they’re non-exclusive. These factors are the purpose and character of the use, the nature of the copyrighted work, the amount and the substantiality of the work that’s used, and the effect on a potential market. The purpose and character of the use questions whether a use is non-commercial, or whether it is for nonprofit or educational purposes. This is a very gray area because oftentimes, you will have clients who will have a blog and then they’ll run AdSense ads on the blog, and although the blog itself is noncommercial, the very placement of AdSense ads may take it out of that noncommercial dimension into a commercial dimension. The purpose and character of use analysis also questions whether the work is transformative. The more transformative a work is, the more likely it is fair use. One of the most recent examples is this problem with Shepard Fairey. He had created this colorized AP photo of President Obama and the question was whether this was a fair use of a photo that was otherwise copyright protected and this case is still ongoing. Even though Shepard Fairy had gotten an assignment of rights from the AP photographer, the AP actually owned the copyright rights to that photo and it’s an ongoing issue. So, like any other aspect of fair use, it is very ambiguous. The next element is the nature of the copyrighted work, which is a question of whether a work is close to the core of copyright protection. So, the question is really, “Is this a literary work like Harry Potter or is this something like a phone book where it’s just a selection and arrangement of different facts?” The next fair use factor would be the amount and the substantiality of the work used. This basically looks at how much of the work you have been using. Are you using 90% of the work or are you using 20% of the work? Do you use just enough of the work to make your point, or do you use too much? The final factor, really, is the effect on the potential market for the value of the copyrighted use. The question is, “Is this going to make the market for the actual copyrighted work go away?” One of the great cases in this area is where somebody had used an mp3 of a Prince song in the background of their YouTube video, their baby danced to the song, and Prince sent a Digital Millennium Copyright Act Takedown to YouTube to get this video removed. Well, the problem is, it’s not really going to displace the market and that’s one of the key questions in that area. Could they download that video and otherwise not listen to the Prince song? Well, they could, but who would want to listen Prince playing through YouTube with a picture of a dancing baby.
DAMIEN ALLEN: what do you want the general public to know about this, John?
JOHN DI GIACOMO: Really, all I want the general public to be aware of is that fair use is not fair use. When you point to something and you say that it is fair use, it really isn’t. It varies on a case by case basis and it is a very fact-based analysis. People should know that you do need an attorney that knows the fair use cases in your district. Fair use in the 6th Circuit is a lot different than it is in the 9th Circuit. For example, in the 6th Circuit, there is a classic case that involved 2 Live Crew where the judge basically said, “If you sample a song, you must get a license,” whereas in the 9th Circuit or the 2nd Circuit, that may not be the case. So, you definitely need an attorney to analyze the cases and kind of give you an assessment of your fair use rights. There’s never such a thing as a use that is absolutely fair. That means that it’s always an argument, and going back to what I talked about in the beginning, it really is uniquely American because we value First Amendment values so much that we want it to be an argument. We don’t want hard and fast rules as to what is and is not fair use. So, the best way for you to mitigate your risk, if you intend to use the copyrighted content of another person, is to consult with an attorney.
DAMIEN ALLEN: Indeed. Thank you for the information today, John.
JOHN DI GIACOMO: Thank you.
DAMIEN ALLEN: We’ve been speaking with John Di Giacomo of Traverse Legal and we’ve been discussing copyright fair use. You could listen to more interviews and shows on copyrights and copyright law on Traverse Legal Radio. My name is Damien Allen. I’m in Studio A today. Everyone, thank you for joining me and have a great afternoon.