Copyright and Fair Use: Misconceptions & Explanations
This post is guest authored by Victoria Gonzales, a rising third-year law student at Texas A&M School of Law. Victoria is one of our summer legal interns here at Maddrey PLLC, and we are happy to present this article. As always, I have reviewed this post for its legal and factual conclusions – Tom Maddrey
Copyright Infringement, and fair use specifically, tend to be two of the most misstated and misunderstood parts of entertainment and art law. What people generally don’t know is that fair use is “allowable copyright infringement.” That’s right, claiming fair use does not mean you are not an infringer. Below we will discuss what you need to know when it comes to infringement and fair use.
When an artist creates a painting, they are entitled to what lawyers call “exclusive rights” in that piece. These exclusive rights include the right to reproduce their painting, create derivative works based on the painting, distribute it, and display it (for musical and performance works there are other, more specific rights).
Though you don’t have to register your work with the Copyright Office to obtain these rights, it is advisable that you do so in case you become a victim of infringement. Recent US Supreme Court rulings mean that you can only bring a case to court regarding infringement if you have the work properly registered. Interestingly, the recent case against Gigi Hadid for copyright infringement was dismissed on these grounds—the paparazzi photographer failed to timely register a copyright in the image prior to filing the lawsuit.
Infringement occurs when someone that is not the copyright owner exploits these rights without permission. For example, if you took a pdf version of a book, printed it and began selling it, this is likely infringement on the copyright owner’s right to reproduction and distribution.
Fair use is a limit on the exclusive rights that copyright holders own. Typically, fair use is found where is the use of a copyrighted work is for criticism, comment, news reporting, teaching, scholarship and research.
No matter the purported fair use, the court will go into a very fact specific analysis that includes four main statutory factors. These factors include things like whether the use was transformative or commercial, how much of the work was used and the effect of the use upon the potential market for the work.
That’s right, there are no hard and fast rules about the amount of work you can take and be in the clear. Where this appears a lot is in Youtube videos or podcasts where someone will use 10 seconds or less of a song and think that that will protect them from possible claims of copyright infringement or that their use is “fair” because it’s minimal. This is a common misconception and you will save yourself a lot of time if you just use royalty free music or get a license.
What if I use someone else’s work to create my own?
I am going to use a phrase that lawyers like to use, “It depends.” The answer to this will depend on if the courts determine you have sufficiently “transformed” the copyrighted work into something else (or fulfilled other of the fair use factors). For example, if you took an image from a TV show, cropped it, and created a painting out of it using new mediums and methods, this would likely weigh in favor of your use being “fair.” On the flip side, Gigi Hadid’s lawyer in the case linked above made an argument that she “transformed” the image by cropping it to post it on Instagram and the court didn’t buy it.
Much more to come in future blog posts about fair use!
About the Author
Thomas Maddrey is the founder and managing partner of Maddrey PLLC. Prior to attending law school, Tom was a commercial photographer, entrepreneur, and gallery owner. His work in both the arts and as a business owner has given him a unique perspective on the needs of owners and creatives, as well as an understanding of the obstacles they face.
Learn more about Thomas Maddrey HERE.