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Fair Use Considerations

The fair use doctrine is no longer just an affirmative defense to copyright infringement to be used by an alleged infringer, because according to the Ninth Circuit Court of Appeals, the fair use doctrine is so uniquely ingrained in copyright law that it is deserving of treatment that is different than the traditional affirmative defenses. The Ninth Circuit came to this conclusion when plaintiff Stephanie Lenz sued Universal for a violation of the Digital Millenium Copyright Act (DMCA). Ms. Lenz posted a YouTube video of her toddler dancing to Prince’s hit song “Let’s Go Crazy”. Universal issued a take down notice to YouTube alleging that Ms. Lenz did not have permission to use the song and in turn, Ms. Lenz alleged a violation of the DMCA. While the Court agreed that fair use must be considered prior to the issuance of a take down notice, the Court stressed that as long as the copyright owner forms a subjective good faith belief that the fair use doctrine is inapplicable, then the copyright holder has not violated the DMCA. The Court does go a bit further and notes that the owners must do more than pay “lip service” to the fair use doctrine and where there is a high probability that the rights holder took a willful blindness approach in learning of the possible fair use, there exists a probable violation of the DMCA.

The Fair Use Doctrine was created to promote freedom of expression and to further the goals of copyright law, by allowing for the unlicensed use of copyrighted works in certain circumstances. Section 107 of the United States Copyright Act (USCA) lays out the statutory framework for determining whether or not a use is fair and identifies certain works (news, commentary, teaching, scholarship, and research) as examples of what qualifies as fair use. The USCA describes four factors that are used in analyzing fair use on a case-by-case basis. No one factor is dispositive, instead the courts are required to weigh the presence of each factor in making a determination of fair use. The factors are:

  1. The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Here, the courts examine how the copyrighted work is being used. Noncommercial uses are more likely to be found as fair while commercial uses are likely not fair. The court also examines how transformative a use is, meaning the new work furthers a different purpose and character and does not act as a substitute for the original work.

  2. Nature of the copyrighted work: This factor examines the degree to which the original work relates to the copyright’s purpose of encouraging freedom of expression. The more creative a work is, the less likely it is to be protected by fair use.

  3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: One must examine the quantity and quality of the copyrighted material used and where a large portion is used, fair use is less likely than when a smaller portion is used, unless the small used portion is seen as the “nucleus” or “heart” of the original work.

  4. Effect of the use upon the potential market for or value of the copyrighted work: Courts must decide whether and to what extent the new work harms the existing or future market for the original work. Where the harm is minimal, fair use is more likely.

Because copyright owners are aware of this widely accepted doctrine, it appears as though the courts are leaning toward making the negation (or unavailability) of the doctrine as a part of the content holder’s claim for infringement. Instead of just proving substantial similarity and access, looks like owners will be soon forced to prove the absence of fair use as well. This is especially important for all borrowers of copyrighted material because it will decrease frivolous take down notices that all ISP’s are obliged to adhere. It allows the fair use defense to be taken into consideration without resort to court, which is the only place where alleged infringers are able to assert their authority for use of copyrighted material.

It looks like Ms. Lenz wants her day in court and both parties are fighting this fight to the end because of what it might mean for copyright law in the future. Stay tuned…

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