November 27, 2012

Copyright Infringement: How much is too much?

Today I'll be answering the question, Copyright infringement. How much is too much? What I mean by that is, how much can someone copy from someone else without being liable for copyright infringement? It's a question I get almost every single day, from both perspective clients and existing clients. They want to know, if there's a particular work out there, how much they can copy before they're subject to copyright infringement liability. My answer is always the same. “It depends.” That's not a very comforting answer to clients, but it is the reality.

Welcome to Copyright Law Radio. We bring you the best in copyright news, legal advice and information.  From copyright infringement claims and defenses to threat letter issues, DMCA takedown notice letters, copyright licensing, and legal analysis of the latest copyright law cases, we have a copyright attorney who can answer your copyright questions.

This is copyright attorney, Brian Hall, with Traverse Legal PLC, a law firm that represents copyright owners, and also helps go against copyright infringers throughout the United States. Today I'll be answering the question, Copyright infringement. How much is too much? What I mean by that is, how much can someone copy from someone else without being liable for copyright infringement? It's a question I get almost every single day, from both perspective clients and existing clients. They want to know, if there's a particular work out there, how much they can copy before they're subject to copyright infringement liability. My answer is always the same. “It depends.” That's not a very comforting answer to clients, but it is the reality. It's the reality because copyright infringement, the test really looks at many factors, not just the volume of what's been copied. It looks at what was the purpose of the copying. How was the copying portion used? Did it displace the market for the previous work? Those kinds of things. I can't give a flat-out number of lines, for example, in a magazine article, or number of pages from a book, or number of images from a cartoon. Those kinds of things are almost impossible to do.

However, what I try and do is, dig in deeper to understand what use is going to be made. Then, advise about the best ways to try and mitigate copyright infringement liability. Most of it really comes down to what is known as the Fair Use Doctrine, under the copyright laws. Section 107 specifically discusses limitations on exclusive rights, namely fair use. When evaluating whether or not something can be qualified as fair use, meaning if I go out and copy a portion of something to use it in another way, is that either copyright infringement? Or is it not copyright infringement because of the defense of fair use? There's really four factors that a court of law would look at to determine whether or not it's fair use. Those are the same factors that I, as a copyright attorney, would analyze. The first factor is the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit, educational purposes. This one is critically important because what it says is, that if someone's going out to copy another in order to create a competing work and potentially displace the market for that preexisting work, then it's more likely that it could be copyright infringement. More importantly, from a practical matter, it's more likely that the owner of the preexisting work will take issue with that copying. However, if you're copying snippets or very de minimis portions of that work in order to comment on it, to criticize it, or to further educate others about it, it's likely to benefit that person that's looking to claim fair use and avoid copyright infringement liability. The second factor under the fair use test is the nature of the copyrighted work. Again, this particular factor looks at what are you creating. Are you creating a book based on copying portions of another book? Or are you creating some other kind of work? Or some other kind of material that can fit within the fair use statute?

The third element is the amount and substantiality of the portion used, in relation to the copyrighted work as a whole. Really, this third factor is the crux of the question I posed at the outset of this. How much is too much? In order to get a better feel for how much is too much, I always go and research the cases that deal with the particular works that my perspective or existing client is asking about. I see if there's guidance out there from preexisting cases. Guidance as to how much truly is too much, or what volume of that preexisting work is permissible to take without subjecting yourself to copyright infringement liability. Finally, the fourth factor, the effective use upon the potential market for, or the value of the copyrighted work. I eluded to this a little bit earlier when I said if the copying into a subsequent work is going to displace the market for, meaning it's going to attract consumers to your product and as a result, allow you to profit more than the previous or preexisting work owner.

Then, you are likely in violation of this fourth factor. Ultimately, what a court does is, they look at all of these factors, and they make a determination. Likewise, that's exactly what I, as a copyright attorney, would do in evaluating whether or not I believe what you are taking is too much. Again, the answer is it depends to how much is too much, because there's a lot of factors that go into that analysis. Regardless, you should consult with a copyright lawyer who's experienced in this area and can discuss what other cases he's been involved with, or what other issues he's dealt with in similar instances, to give you a better feel for, and maybe try and define some of the parameters around how much may be too much. Most important of which, again, is looking at case law that has been decided to see if there is additional guidance there. Once again, this has been copyright attorney, Brian Hall, with Traverse Legal PLC, answering your question. “How much is too much, as it relates to copyright infringement?”

You’ve been listening to Copyright Law Radio, where copyright infringement, licensing, litigation, and news are always the topic of the day.  Whether you are a copyright attorney or a client, we are the number one resource for all your copyright questions.

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