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Making Good Use of Fair Use

Published on June 18, 2007

The first time I encountered the term "fair use" was as an intern here at Arts Engine. A few weeks into my internship, I was asked to research the topic for an article and like many artists and filmmakers, I was completely uninformed about the concept of fair use. As the weeks of research passed, I became more and more familiar with the fair use doctrine. Yet instead of having answers, I had endless questions. I decided that what I needed was a long chat with a professional, an entertainment lawyer. David Korzenik, a partner with the law firm of Miller, Korzenik Sommers LLP in New York City and a professor of Media and Entertainment Law at the Benjamin N. Cardozo School of Law gave me the opportunity to pick his brain on every doubt and confusion that I had come across. As independent filmmakers, it can be hard to find the time to research fair use and understand the rights that we have in their entirety. I hope that reading this will give those in the media industry (especially filmmakers) a better grasp of the concept and inspire you to make good use of fair use.

At some point, almost every documentary filmmaker (as well as other artists) has to contend with copyright owners. In an ideal world, copyright law exists to provide creative protection for artists, encouraging creativity by penalizing the copying of significant portions of the artist's work. But there is a strong exception to copyright protection, and that is what is known as fair use.

Those seeking to incorporate portions of copyrighted material into their own work, whether as a point of a reference or as part of an entirely new creative work, can utilize fair use. Whether you are a documentary filmmaker, a painter or even an academic writer, you may draw upon copyrighted materials for the purpose of illustration, interpretation or criticism under the fair use doctrine.

David Korzenik, of the law firm Miller Korzenik Sommers LLP. He is also a professor of Media and Entertainment law at the Benjamin N. Cardozo School of Law.

As noted by David Korzenik, fair use is essential to the creative process: "We build upon the work of other people, we comment on it, and the process of creativity is a collective process. And therefore, copyright laws are intended not only to protect, but also to create a certain margin of safe use, a fair use, by creative people without permission."

Fair use applies to all forms of media and allows limited use of a copyrighted work based on four factors. According to the cases these factors are:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes

2. The nature of the copyrighted work

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

4. The effect of the use upon the potential market for or value of the copyrighted work.

Whether a person's use of another's creative work constitutes fair use must ultimately be decided by the court based upon its consideration of these four factors. There are no absolute rules that can be applied to decide whether a work is protected by fair use. This is why employing a fair use claim can be risky. However, the courts have typically sided with the artist in fair use cases.

Probably the most significant factor preventing the just practice of fair use is the cost of bringing a claim to court. An independent artist, even when faced with an illegitimate claim, may be deterred from fighting for her right to fair use because of court costs. Korzenik states, "Defendants will always face high transaction costs for wielding the defense. So insurers obviously are chastened by that fact. The important thing to keep in mind is that when these things are ultimately tested by courts...they actually are more often recognized and upheld by the courts than plaintiffs imagine, or even some defendants imagine. In other words, the courts tend to be strong upholders of the fair use doctrine. The problem is it costs a lot of money to get there."

And individuals are not the only ones daunted by the prospect of a court battle. For a movie to get distributed in this country, it must possess errors & omissions insurance. Historically, insurance firms have hesitated to grant insurance to films that plan to employ a legitimate fair use defense for copyrighted footage. But recently there has been a shift, and we've seen more and more instances in which fair use has been used successfully. Some hail the documentary This Film is not yet Rated as a landmark success for fair use. Director Kirby Dick used 134 film clips in the film to criticize the way in which the MPAA confers movie ratings. Because the use of the clips met fair use guidelines, no claims were brought against Dick by movie studios. Dick's triumph gave confidence to other filmmakers and also sparked major film insurers, who historically have not insured films wielding a fair use defense, to provide coverage to documentary filmmakers making fair use claims.

So current filmmakers should take heart from this. If they stand their ground in the face of an infringement claim, they're likely to come out winners.

Kirby Dick’s This Film is not yet Rated was a landmark success for fair use.

The relatively new realm of the internet provides a good example of how fair use claims sometimes play out. The proliferation of Internet Service Providers (ISPs) and their user-generated content is testing the boundaries of fair use and the ability of traditional copyright infringement claims to keep up. According to Korzenik, "There's a feeling some people have had that new media requires some special new legislation. I think that's sometimes overstated, but the truth is when it comes to certain kinds of media there has been a need for...new guidelines for people to know how those rules might apply."

The most significant act of legislation concerning the internet and copyright liability has been the Digital Millennium Copyright Act (DMCA). It gives ISPs a "safe harbor" in which to exist if they follow its provisions. For example, one of the most important and controversial provisions is that if a copyright owner sees that her work has been infringed and is posted on an ISP, she can send the ISP a "take-down notice," and if the work is immediately taken down, then the ISP will not be held accountable. This provision is divisive because it ends up protecting ISPs at the expense of possible fair users. Because users do not have the opportunity to challenge a take-down notice before the ISP acts, legitimate content is taken down in some cases due to illegitimate claims. Korzenik notes, "...If you're running an internet site, why are you going to spend time and money protecting third parties who are posting things on your site? In most cases you just wouldn't care whether it's fair use or not, you just save yourself the trouble, take it down, and that's the end of it."

This issue is currently being debated on a very large scale in the Viacom v. Google case, in which Viacom brought a $1 billion copyright lawsuit against Google's site YouTube in March. Viacom claims that YouTube is not doing enough to regulate posts that contain Viacom's copyrighted material. Google claims that they obey the provisions of the DMCA and even provide copyright protection tools to assist copyright owners. Viacom has officially stated, "It is obvious that YouTube has knowledge of infringing material on their site and they are profiting from it. It is simply not credible that a company whose mission is to organize the world's information claims that it can't find what's on YouTube."

Google is confident in its position. Michael Kwun, managing counsel for litigation at Google, has stated, "We're not going to let this lawsuit distract us." Though the DMCA has its flaws in practice, it is important to protect ISP's that post user generated content. As Kwun said, "We think YouTube offers the world's leading platform for entertainment, education and free speech."

This case is especially significant because it will possibly lead to new legislation and a revision of the DMCA. In Google's official defense statement, it claims that, "Viacom's complaint in this action challenges the careful balance established by Congress when it enacted the Digital Millennium Copyright Act. The DMCA balances the rights of copyright holders and the need to protect the Internet as an important new form of communication."

Viacom is concerned about people posing clips from its shows, including Steven Colbert's popular The Colbert Report from Comedy Central.

As it is, the DMCA is biased towards copyright holders. This may be because they have the most influence on lawmakers. Korzenik agrees: "When U.S. copyright law is amended and adjusted the people who have the greatest impact are the copyright owners the film industry, the music industry." But now that ISPs — some of whom have resources akin to the movie and music industries—are becoming involved with these issues, it could be very beneficial for the individual artist. ISPs are unique because they will fight on the side of the artist and the public, and against copyright holders and media conglomerates like Viacom.

The biggest advocates of expanded protections for fair use, however, are our librarians. Korzenik relates, "The people who actually step in when there's legislation afoot and who are most concerned about the public's interest in the copyright law formula are basically the librarians. And their trade association is the most active in Washington in terms of trying to make sure that there's proper balance within it." Check out Radical Reference and see what our librarians are working on.

The Center for Social Media’s Documentary Filmmakers’ Statement of Best Practices in Fair Use is a valuable resource for any artist.

In addition, there are other resources available to filmmakers and other artists who wish to employ fair use:

• The Center for Social Media's Documentary Filmmakers' Statement of Best Practices in Fair Use

• The Brennan Center for Justice's Will Fair Use Survive?

• Stanford's Fair Use Project provides pro bono law assistance in some fair use cases.

• In New York, Volunteer Lawyers for the Arts will in some cases provide defense for filmmakers who don't have the means to hire a lawyer.

• Creative Commons takes a different approach. Their website allows artists to license their work in ways that allow others to use it more freely.

• The Electronic Frontier Foundation aims to protect first amendment rights on the Internet, where copyright infringement is currently under heavy scrutiny.

This article is available for noncommercial use under a Creative Commons license. It was originally published on MediaRights.org, a project of Arts Engine, Inc. This notice must accompany the article at all times.