The right to copyright protection is outlined in the U.S. Constitution to protect the rights of those who produce content; however also embedded in the Constitution is the idea that the “progress of science and useful arts” must be promoted.  U.S. Const. Art. I, § 8, cl. 8.  At the cross-section of both notions exists a series of defenses to copyright infringement that courts have widely accepted.

Some of the most commonly applicable defenses are that (i) the statute of limitations has run; (ii) the copyrighted work is in the public domain, which essentially means that for one reason or another, exclusivity rights no longer apply; (iii) the defendant has a valid license to use the copyrighted work; and (iv) the owner’s copyright is invalid.

In addition, one of the most dynamic and prominent defenses is the Fair Use Doctrine, so much so, that in 2008, the District Court in Lenz v. Universal Music Corp. agreed that the failure to consider the Fair Use Doctrine before requesting a takedown notice of the work could give rise to a crossclaim for failure to act in good faith when bringing the claim.  Lenz v. Universal Music Corp., 815 F.3d 1145, 1151 (9th Cir. 2016)It’s no secret how powerful the doctrine can be in defending against infringement claims, but what goes into a court’s decision when applying the defense?

To start with, courts employ a balancing test when analyzing whether a defendant’s actions constitute fair use, and the defense typically stands when use of the copyrighted work is considered beneficial to society. The following factors play a role:

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes. 17 U.S.C. §107.

A court will look to whether the new work created is “transformative.” That is, if it “adds something new, with a further purpose or different character, thus altering the first with new expression, meaning, or message.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 571, 114 S. Ct. 1164, 1167 (1994). Although transformative use is not necessary, it can reduce the burden on showing the remaining three factors.
In fact, the use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, or research, is considered fair use. 17 U.S.C. §107.

(2) The nature of the copyrighted work. 17 U.S.C. §107.

Mainly, courts look at whether the copyrighted work is factual or fictional, as fictional works are typically given greater protection in a fair use analysis. See Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 594, 105 S. Ct. 2218, 2248 (1985).

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole. 17 U.S.C. §107.

It has been widely understood that it is not necessary for the whole of a work to be copied to be considered for infringement.  Folsom v. Marsh, 9 F. Cas. 342, 348 (1841).  Rather, courts also consider how excerpts of the copyrighted work have been used and their relation to the work as a whole.  Id.  If an excerpt diminishes the value of the original work or embodies a substantial part of the efforts of the author, this may constitute infringement. Id.

(4) The effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. §107.

Where “unrestricted and widespread” use of a work in the same or similar manner as the original would have a “substantially adverse impact” on the potential market for the work, this weighs against a finding of fair use, even if the copyright holder cannot demonstrate an established market for the work. Ringgold v. Black Entm’t TV, 126 F.3d 70, 81 (2d Cir. 1997).  It can be sufficient for the holder to demonstrate that the market is “traditional, reasonable, or likely to be developed.” Id.

Evidently, the combinations of factors and circumstances that can exist in each case can make defending against a copyright infringement claim rather complex and difficult. Those faced with such claims should consider seeking out legal counsel. TALG is experienced in litigating copyright matters and welcomes all inquiries. Please reach out to us with any questions or if you need assistance in litigating any fair use matters.