Fair Use is one of those concepts that gets thrown around a lot when talking about content in social media. But how many of us really get what Fair Use is? Judging from blog posts I've seen at a few sites recently, there are a lot of misconceptions. Here are a couple of statements I've read lately (they're paraphrased, but they convey the gist):
Content owners should allow Posters to use their content on YouTube under Fair Use.
Here's the good news. If it's Fair Use, they are allowed! If a use is determined to be Fair Use under the Copyright Law, you don't need to get the permission of the copyright holder. The question is, what constitutes Fair Use.
Giving your only copy of a DVD to a friend is Fair Use.
Nope. If you legally possess a DVD, giving that DVD to a friend is permitted under a provision in the Copyright Law commonly referred to as the First Sale Doctrine, but it's not Fair Use. Sometime people use the term Fair Use to mean anything that is not copyright infringement. Fair Use, however, is a specific limitation on the reach of copyright, based solely on an analysis of four Fair Use factors written into the Copyright Law. The four factors, as they appear in the Copyright Law, are:
(i) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(ii) the nature of the copyrighted work;
(iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(iv) the effect of the use upon the potential market for or value of the copyrighted work.
There are other limitations on copyright, but they're not Fair Use.
It's not Fair Use if it's done by a commercial business.
The first Fair Use factor would seem to confirm that use in a commercial venture cannot be Fair Use. But, courts have noted that virtually any use is tied in some way to making money. Even a scholar that quotes a passage from a book to critique the work (the classic model of the Fair User) may make a living (or hope to) from such endeavors. There have been numerous instances where courts have found uses of content by for-profit businesses to be Fair Use. In a case decided this month, the 4th Circuit Court of Appeals ruled in favor of a company asserting that its archiving of student term papers for purposes of conducting a for-profit plagiarism-detection service was Fair Use. So, while the fact that the user is a commercial entity may be a consideration in a Fair Use analysis, it is not necessarily the determining factor.
It's Fair Use to use music clips under 30 seconds in length for non-commercial purposes.
This implicates mainly the first and the third Fair Use factors. First, if the user does not make money from the use, is it always Fair Use? If that were the case, high schools across the country wouldn't have to pay royalties to put on their own unique productions of Grease or Cats or Bye Bye Birdie (yes, you have to pay royalties for that, too). As to the length of a clip, the 6th Circuit Court of Appeals has decided that including only three notes comprising two seconds of a sound recording in another recording can constitute copyright infringement. So using a short clip does not in and of itself guaranty a Fair Use defense. But this statement illustrates a key point about Fair Use. That is, you don't look at only one factor. Determining Fair Use means analyzing the use in terms of all four factors together. So, while the non-commercial nature of the use or the amount of the work used may not separately determine Fair Use, taking both factors into account, together, might, depending on the analysis in the context of the other two factors.
Its Fair Use to embed music in your video if you degrade the sound quality.
I presume this one is based largely on the fourth factor, since if the sound quality is bad enough, the embedded work would not be a marketplace substitute for the real thing. But, in the 6th Circuit court decision above, the defendant altered the pitch of the music, which might have had an effect on the quality of the amount copied (or at least the fidelity to the original). This didn't change the court's analysis, however. Yet, courts do take into heavy consideration whether the use of the work is 'transformative'. This is generally analyzed in the context of the first factor. A use can be transformative if it alters the underlying work in a manner that expresses new meaning or expression (think Andy Warhol's Marilyn Monroe). But, the work doesn't have to be physically altered. In the recent 4th Circuit case discussed above, the court acknowledged that the student term papers were not physically altered, but found the use transformative since the fundamental purpose for which the papers were used (detecting plagiarism) was completely unrelated to expressive elements of their content. Many courts have expressed the opinion that, if a use is transformative, any negative impact of the other factors is significantly diminished.
The key point is that, while there are certain circumstances where you can say it's more likely than not, you don't really know if something is Fair Use until a court says it is. Fair Use is determined on a case-by-case basis, analyzing the circumstances in light of all of the four Fair Use factors together. You can fall on the wrong side of some of the factors and still survive a Fair Use analysis. Conversely, you can be on the right side of some of the factors and still fail a Fair Use analysis based on the others. Just because one activity was determined by a court to be Fair Use, doesn't mean another somewhat similar activity is as well. The bottom line is, it is risky to rely on Fair Use as a means of avoiding copyright infringement. When we're describing some activity, in social media or on the Internet generally, as Fair Use, it's important to understand that we can't often be so sure.