Fair Use: A Manual

By Eduardo Loret de Mola from Berklee’s Music Business Journal, thembj.org.

Fair use has always been a contentious concept. A great number of musicians, as well as artists of other varieties, include copyrighted material in their own works through techniques such as sampling and parodying. However, many of these works do not fall under the scope of fair use. In fact, there is a lot of uncertainty regarding what constitutes fair use and what does not. A recent study by the College Art Association (CAA) found that “37 percent of artists use third-party material and that one in five avoids or abandons a project over concerns that they’re not doing it right and that number is much higher for editors and academics.”¹

The principle of fair use was incorporated into the law to allow people to use portions of copyrighted materials without infringing upon the rights of the owner. According to section 107 of the U.S. Copyright Act, anyone can use part of a copyrighted work as long as its use falls under one of the categories specified in the law: criticism, comment, news reporting, teaching (which includes multiple copies for classroom use), scholarship or research. The expectation of this principle is that the copying of protected works has to have a transformative dimension, as indicated above, and for only a limited amount of time.

In theory, a person would not need permission from the rights owner to use the copyrighted material under the specifications of the law. However, if the copyright owner disagrees with the way a person is copying his or her work and argues that it is not fair use, then the matter would have to be settled in court or by arbitration. Still, fair use is a legitimate defense against a copyright infringement claim. In order to prove if the work made out of a copyrighted material is protected under the fair use provisions or not, the law enumerates several factors that must be taken into consideration, which are:

1. “The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

1. The nature of the copyrighted work;

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

1. 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 The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”²

Evidently, if, after the evaluation, the work qualifies as a fair use, it will not be considered as an illegal infringement, nor will the author need to pay royalties to the owner of the copied work. However, if it’s not considered a fair use, then there would be an infringement, which would likely translate into liability for damages. It is true that these assessments, which are done on a case-by-case basis, can end up being very subjective, stressing the necessity of having a clearer picture of how to proceed when the lines are blurred. A lot of money, in the form of legal fees, has been “invested” in an attempt to determine what constitutes a fair use. “There are no hard-and-fast rules, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.”³

For example, in GoldieBlox vs. The Beastie Boys, the former used the band’s song “Girls” in one of their video commercials for “Princess Machine”, a construction toy for girls. After becoming widely popular and gathering millions of views, the Beastie Boys responded by alleging copyright infringement. The company argued that the ad was a parody because they were trying to empower young girls, and break stereotypes by making fun of the song, and was therefore qualified for protection under the fair use doctrine. The band’s argument was that the ad was clearly a tactic to sell a product, and not to simply to show a message of empowerment for girls. It was alleged that the reason it’s not fair use was due to the fact that the company’s logo appears on screen in the last seconds of the ad. This is known to be an advertising strategy to sell products through emotional manipulation, because the consumer may think he or she is investing in a cause as much as a product. At the end, the matter was settled because the company did not want to engage in a legal battle with the band, not because the legal provisions were sufficiently clear to attribute GoldieBlox’s actions as copyright infringement.

To help solve the problems with fair use, Peter Jaszi and Patricia Aufderheide, two professors at American University in Washington, D.C., created “The Code of Best Practices in Fair Use for the Visual Arts”, sponsored by the College Art Association, which was published on February 2015. This is the 10^th code that both professors have created in order to make the fair use landscape more comprehensible for artists and other creators, so the risk of working with copyrighted materials is minimized to as great an extent as possible. To develop this set of rules, the professors met with thousands of artists who were interviewed about what would be the reasons for them to use or not use copyrighted material in their own work and what would the legal implications be in the event that they decided to use it. They were also surveyed about it, which allowed the professors to develop an initial draft of the code based on the “areas of consensus” between the groups. This ended up being divided into five different sections: analytic writing, museum work, teaching about art, art making and online archives and special collections.

The “Making Art” category is the one applicable to musicians, which has as a fundamental principle that artists, in general, can allege fair use to include copyrighted material into their new creations but they have to be subject to the following limitations:

• “Artists should avoid uses of existing copyrighted material that do not generate new artistic meaning, being aware that a change of medium, without more, may not meet this standard.

• The use of a pre-existing work, whether in part or in whole, should be justified by the artistic objective, and artists who deliberately repurpose copyrighted works should be prepared to explain their rationales both for doing so and for the extent of their uses.

• Artists should avoid suggesting that incorporated elements are original to them, unless that suggestion is integral to the meaning of the new work.

• When copying another’s work, an artist should cite the source, whether in the new work or elsewhere (by means such as labeling or embedding), unless there is an articulable aesthetic basis for not doing so.”⁴

Patricia Aufderheide believes that codes give creators and their lawyers a more complete set of tools that they can utilize to better evaluate the risk of using portions of copyrighted work. “They allow individuals to make judgments knowing where they fall in relation to the thinking of their peers — and that lowers risk.”⁵ Similarly, it has been proven that “best practices codes” have been extremely successful in facilitating artists and other creators to correctly do their work, increasing the levels of legal efficiency.

As shown, fair use has presented its own share of problems throughout the doctrine’s history. It is still part of the creative process and will always be relevant as long as there are musicians and other artists that want to keep creating new works of art, and that is why it is important for codes like this one to exist, particularly when said tools successfully keep up with reality. Most of the time, the problem with the law is that it is not updated as fast as society evolves. These codes allow proper clarification and work as an instruction manual for people who don’t necessarily have a background in law.

Endnotes:

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1. “You’re (Probably) Doing It Wrong: New Fair Use Guide for Artists.” http://www.billboard.com/biz/articles/news/legal-and-management/6472502/youre-probably-doing-it-wrong-new-fair-use-guide-for

2. The Copyright Law. Section 107.

3. Stim, Rich. The Stanford Copyright and Fair Use Center. http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/

4. The College Art Association. ““The Code of Best Practices in Fair Use for the Visual Arts.” Page 11.

5. “You’re (Probably) Doing It Wrong: New Fair Use Guide for Artists.” http://www.billboard.com/biz/articles/news/legal-and-management/6472502/youre-probably-doing-it-wrong-new-fair-use-guide-for