Is your small business trying to spruce up your
website by adding some new pictures? Want to raise money for your nonprofit by
hosting a community movie night? Trying to update your marketing materials with
a brand-new promotional video with cool background music?
If so, you could be opening yourself up to potential copyright lawsuits and should read up on the doctrine of fair use! An important aspect of starting a small business or nonprofit is exposure, and as organizations work to market themselves and increase awareness of their goals and activities in the communities they serve, they could open themselves up to legal danger. Litigation is expensive, and the cost can be especially devastating to small businesses and nonprofits. In all promotional or informational materials (including brochures, flyers, websites, etc.), organizations need to be sure that they are legally protected from copyright infringement claims.
What is Fair Use?
Fair use is a legal
doctrine that permits the unlicensed use of copyright-protected works (in other
words, the ability to use a copyrighted piece of work without the copyright
owner’s permission), but only in certain circumstances.[1] If
a party is sued by someone claiming copyright infringement, fair use is an
affirmative defense they could raise.[2]
Section 107 of the
Copyright Act defines fair use, providing the framework for determining whether
something is a fair use and identifying examples (including criticism, comment,
news reporting, teaching, scholarship, and research) of what would qualify as
fair use. [3]
The Four Factors
Fair use claims are
evaluated on a case-by-case basis, and thus the determination of whether an act
qualifies as “fair use” depends on the details and circumstances of each situation.[4]
Therefore, there is no exact rule or formula that determines exactly how many
sentences of a book, seconds of a song, or scenes of a movie are allowed under
fair use.
However, there are
four factors that a court considers in the analysis of a question of fair use.[5]
They include:
- Purpose and
Character of the Use: How is the party claiming fair use
using the copyrighted material?
Some questions the
court would consider:
·
Is it for nonprofit educational or
noncommercial purposes?
o These uses are more
likely to qualify as fair use, but it’s not a guarantee!
·
Is it transformative (aka: did you add
something to the work in order to create something new), or use the material
verbatim?
o Transformative works are more likely to be found as fair use.
- Nature of the
Copyrighted Work: What is the type of work that was claimed
to be infringed upon?
Some questions the
court would consider:
·
Is the work factual (like a news item or
technical paper) or creative (such as a movie, novel, or song)?
o Factual, nonfiction works are generally more likely to be found as fair use.
- Amount and
Substantiality Used: How much of the copyrighted material
was actually used (both in terms of quality and quantity)?
Some questions the
court would consider:
·
Was only a small amount of the work used, or
a lot of it?
o In general, a fair
use argument is more likely to succeed if the use was only a small amount of
the copyrighted work. However, this is not always the case! There have been
cases where a court has found the entire copyrighted work constituted fair use,
as well as cases in which a small amount of a copyrighted work was determined
not fair use.
·
Was the portion of the work used “the heart”
(or the most important part) of the work?
o If so, even if only a tiny amount was taken, it is unlikely to qualify for fair use.
4.
Effect of Use Upon the Potential
Market/Value: Does this unlicensed use harm the existing market of the
copyrighted work and/or could this cause substantial harm to the value of the
copyrighted work if it were to become widespread?
Some questions the
court would consider:
·
Would this take income away from the creator
by displacing sales of the original?
o If so, this is
unlikely to be considered fair use.
Common Questions
● If I’m a nonprofit organization,
would all my work be considered a nonprofit educational purpose?
○ No! It’s a common misconception
that all use of copyrighted material by nonprofit organizations qualifies as
fair use, due to the “nonprofit educational” consideration in the first factor
of the fair use test. On the contrary, “nonprofit educational purposes” are often
narrowly defined by courts, and status as a nonprofit organization will likely
provide no additional benefit in qualifying for a fair use exception.
● What if I’m hosting an event for
my small business or nonprofit? For example, can I host a screening of Wall-E
to raise funds for my environmental protection nonprofit under the fair use
doctrine?
○ Not necessarily - it’s important
to be extremely careful in these types of scenarios. In order to legally use
music, movies, or television shows, your organization would need to get
permission from the copyright holder, which often involves licensing the
material for a fee. To ensure your organization is protected, it’s best to not
risk the lawsuit - either license the material, or ensure you are using work
that is available in the public domain (and thus not protected by copyright
laws).
● What if I wanted to put a
photograph I found online on my website? If I just acknowledge the original
photographer, is it totally okay to use the work?
○ Nope! Acknowledging the source
material (such as citing the photographer) may be a consideration in a fair use
determination, but it will not protect your organization against an
infringement lawsuit.
● But if my organization sticks very
carefully to this fair use doctrine, we won’t get sued, right?
○ Again, not necessarily! Fair use
is a defense that you can use - not a shield that protects you from litigation.
The copyright owner could have a genuine disagreement with your argument that
your use constituted fair use, and they are allowed to bring that matter to
court.
● So, what can my organization do to
protect ourselves?
○ It’s important to always be overly
cautious when using copyrighted material. To ensure your organization is
protected from unnecessary litigation, it is always best to either
appropriately license the copyrighted work or use work that is in the public
domain (and thus completely free for the public to use, without needing
permission). If you must use a copyrighted work, think carefully about the four
factors, and consider using a
worksheet like this as a road map to determine whether you would have a good
fair use argument.[6]
[1] U.S. Copyright Office Fair Use Index,
U.S Copyright Office (Dec. 2022), https://www.copyright.gov/fair-use/.
[2] What Is Fair Use?, Copyright Alliance
(2023), https://copyrightalliance.org/faqs/what-is-fair-use/.
[3] Copyright Act,
17 U.S.C. § 107.
[4] U.S. Copyright Office Fair Use Index, supra note 1.
[5] Copyright Act, supra note 3.
[6] Fair Use Checklist, Columbia
University Library, https://copyright.columbia.edu/basics/fair-use/fair-use-checklist.html.