1. What Is Fair Use?

2. When Should You Ask This
Question?
 Any time you’re using all or part of someone else’s copyrighted work
without permission.
 This presentation will provide some basic guidelines about copyright
fair use.
 Trademark fair use is will be covered in a future presentation.
 Always do your due diligence and consult a professional if you run
into any questions or challenges.

3. Reminder: What’s A Copyright?
 The U.S. Copyright Office defines copyright as “a form
of protection grounded in the U.S. Constitution and
granted by law for original works of authorship fixed in a
tangible medium of expression.”
 Copyright can be understood as the right to control who makes copies of your work.
 The Copyright Clause of the U.S. Constitution (Article I, Section 8, Clause 8)
empowers Congress “To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to their respective
Writings and
Discoveries.”
 Congress created several copyright laws. As of January 1, 1978, copyright law in the
U.S. is governed by the Copyright Act of 1976, as amended (the “Copyright Act.”)

4. Copyright vs. First Amendment
 The First Amendment to the US Constitution reads:
“Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of
grievances.”
 There is a tension between copyright – a monopoly
on expressive works granted by the Constitution,
common law, and Federal statute – and the First
Amendment’s guarantee of freedom of expression
and of the press.
 Fair Use is how the law attempts to resolve that tension.

5. Fair Use in the U.S. Copyright Act
17 USC 107 Reads:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for purposes
such as criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research, is not an infringement
of copyright. In determining whether the use made of a work in any particular
case is a fair use the factors to be considered shall include:
(1) the purpose and character of the use, including whether such use is of a commercial nature or
is for nonprofit 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; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon
consideration of all the above factors.

6. How Do You “Claim” Fair Use?
 Fair Use is a defense to a claim of copyright infringement.
 This means that the copyright has been infringed – you
have used a copyrighted work without the owner’s
permission.
 In the event you are successfully able to assert Fair Use as
a defense, the infringement case against you will fail.
 To see how this might work, let’s examine the four-factor
test that was outlined in the Copyright Act section from
the previous slide…

7. Factor 1: The Purpose and
Character of the Use
 How is the alleged infringer using the copyrighted work?
 Even if the work is used commercially, if the use is sufficiently
“transformative,” a finding of fair use may result. A transformative use adds
something new to the original work. The copyrighted work will then have a
new meaning or message.
 This is why Saturday Night Live (and other for-profit parodies) typically get
away with using copyrighted works. Their transformation of the work
changes it enough to make the message of the work different – often
commenting on (or poking fun at) the copyrighted work itself.
 We’ll get into parody in more detail later in the presentation.

8. Factor 2: The Nature of the
Copyrighted Work
 If the copyrighted work is inherently creative, such as a book or a
fictional movie, it will be entitled to greater copyright protection
compared to an informational or a functional work.
 It follows that the more creative a work is, the less likely an alleged
infringer will be able to rely on a fair use defense.

9. Factor 3: Amount and
Substantiality of Use
 When someone uses a copyrighted work, the amount she uses is
taken into account when determining whether or not the fair use
defense applies.
 However, even if it is a small percentage of the work, courts will also
look to see if the infringer has used the “heart” of the work.
 The “heart” is the most significant or recognized portion of the
entire work.

10. Factor 4: Effect on the Work’s
Market or Value
 Does the infringed use somehow lessen or impair the market
demand for the original copyrighted work?
 In other words, can people get the same fulfillment out of the
infringing use of the work as they can out of the original work?
 If the contested use impairs the revenue the copyright
owner could realize from a licensing agreement,
that will be taken into account.

11. What Does This All Mean?
 Because of the ambiguities in the four factor test for fair use, it can
be difficult to determine whether or not a work or a piece of a work
is “fair” for a particular use.
 Not all 4 factors are weighed equally – for example, courts often tend
to put greater emphasis on the first factor, the purpose and
character of the use.
 Some important fair use cases can provide some guidelines about
what may or may not be considered fair use. There are countless fair
use cases, and courts don’t always agree on the basic principles. A
few cases of note are reviewed in the following slides.

12. Important Fair Use Cases
 Libraries provided Google with books to scan.
The libraries used the scans for 3 purposes:
 Preservation
 A full-text search engine
 Electronic access for those who were not able to read print versions due
to disabilities
 These purposes were held by the court to be transformative (which
goes to Factor 1 - this word will come up again and again.)
 The court also found no evidence of financial harm.
 The Author’s Guild v. Hathitrust, No. 1:11-cv-06351-HB (S.D.N.Y.,
October 10, 2012)

13. Important Fair Use Cases:
2 Live Crew v. Roy Orbison
 1980s rap group 2 Live Crew produced a vulgar version of the
Roy Orbison rock classic “Oh, Pretty Woman.” The rap version
included the song’s musical hook and some of the lyrics. They did
not get permission from the copyright holder, Acuff-Rose Music,
who sued. The case went to the United States Supreme Court.
 The Court held that the 2 Live Crew version was a parody and
was therefore protected under the fair use doctrine.
 Regarding Factor 3 – the amount & substantiality of the work used – in the case of a
parody, the Court said, “…even if 2 Live Crew's copying of the original's first line of lyrics
and characteristic opening bass riff may be said to go to the original's 'heart,' that heart is
what most readily conjures up the song for parody, and it is the heart at which parody
takes aim.”
 Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)

14. What’s a Parody?
 According to Dictionary.com’s first definition, a parody is “a humorous
or satirical imitation of a serious piece of literature or writing.”
 Don’t confuse parody with satire. Satire uses all or part of an
existing work for social commentary. Parody, on the other hand,
makes fun of the underlying work itself.
 Even after the 2 Live Crew case, we can’t assume that all parodies are
automatically protected under fair use. The 2 Live Crew Court stated:
 The fact that parody can claim legitimacy for some appropriation does not, of course,
tell either parodist or judge much about where to draw the line. Like a book review
quoting the copyrighted material criticized, parody may or may not be fair use, and
petitioner's suggestion that any parodic use is presumptively fair has no more
justification in law or fact than the equally hopeful claim that any use for news
reporting should be presumed fair.
 So all 4 fair use factors must still be considered even in the case of a parody.

15. Important Fair Use Cases: The Cat
Not In The Hat!
 An author used the style of Dr. Seuss – including such distinctive
elements as the Cat’s red-and-white striped hat – to tell the story
of the O.J. Simpson case. Dr. Seuss’ widow, Audrey Geisel, sued.
 The 9th Circuit Court of Appeals held that this was not fair use, as it
was a satire, not a parody of Dr. Seuss’ work.
 Furthermore, the work was found to be non-transformative
and commercial.
 Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc.,
109 F.3d 1394 (9th Cir. 1997)

16. Important Fair Use Cases:
Jersey Boys
 A 7-second clip from the Ed Sullivan show was used in the
Broadway musical “Jersey Boys” without permission.
 The 9th Circuit found that this was fair use because:
 The use was transformative (there’s that word again) –
the clip was used in a new context, to help tell the story
of the 60’s group the Four Seasons.
 No financial harm was caused to the copyright holders of the
Ed Sullivan clip due to this use.
 SOFA Entertainment, Inc. v. Dodger Productions, Inc., No. 2:08-cv-02616
(9th Cir. Mar. 11, 2013)

17. Important Fair Use Cases: The
Twitter Photo Case
 In January 2010, Daniel Morel posted his photos of the
Haiti earthquake’s aftermath on Twitter. The photos were
picked up by Agence France-Press (AFP) and were
eventually published in the Washington Post. Morel sued.
 While acknowledging that retweets (RTs) are a part of the Twitter landscape,
the judge was not willing to extend the same right to copy images outside of
Twitter itself.
 Despite the newsworthy nature of the photos, this was not held to be fair use.
 Agence France Presse v. Morel, 2011 WL 147718 (S.D.N.Y. Jan. 14, 2011)

18. What’s the Future of Fair Use?
 Due to several recent rulings expanding our understanding
of the “transformative” issue, there is a perception that the
fair use doctrine has been liberalized in recent years.
 This suggests that courts are more willing to find a use to
be “fair” where that use puts the underlying work in a new
context or adds additional information.
 However, the Twitter photo case could be said to go in the other direction.
 Until the courts or Congress provide some additional direction, it will remain
challenging for people in the real world to have certainty that their proposed
use of a copyrighted work is fair. As always, you’re advised to seek qualified
legal counsel before using all or part of a copyrighted work – never just
assume that your use is “fair” because your intentions are pure.

19. Prepared and Presented By:
David Lizerbram
David Lizerbram & Associates®
www.LizerbramLaw.com
Twitter: @DavidLizerbram
Direct Phone: (619) 517-2272
3180 University Avenue, Suite 260
San Diego, California 92104

20. Final Note: This Presentation is Not
Legal Advice
I am not your attorney. Nothing in this presentation should be taken as
legal advice. This is simply general information that may be helpful.
Consult an attorney if you have any specific questions or concerns.