Defenses & Remedies
A fair use of a copyrighted work is not infringement.
Courts consider four factors in assessing whther a use if fair:
(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.
Donny Dump decides to run for political office. As part of his campaign, he creates a campaign song (3:00 minutes long) that he plays at all his rallies. Hillary Chilton is his opponent. She creates a television commercial that uses 15 seconds of Donny’s song, as she criticizes Donny’s and his campaign tactics.
Question: Is Hillary’s use of Donny’s song a fair use?
Benny loves to listen to a variety of music. To decide whether he would like to purchase a song, he often downloads songs from a file-sharing website and then listens to them. Once he listens to a song that he downloads, he does not delete it from his hard drive. Some songs he decides to purchase; others he does not.
Question: Is Benny’s use of the copyrighted songs a fair use?
Lucy writes a biography about a famous artist, Billy BonaFide. In writing the biography, Lucy quotes from six unpublished letters and ten unpublished journal entries that Billy wrote. The total quotations constitute less than 1% of the letters and journal entries at issue, and Lucy uses them to demonstrate specific factual occurrences. Lucy publishes her biography and makes a profit.
Question: Is Lucy’s use of the letters a fair use?
Swoze is a foreign corporation that holds a yearly conference call about its earnings report (which Swoze tapes). Swoze invites several hundred financial analysts to the call. Information in the call assists the analysts understand circumstances surrounding the earnings report, and thereby value the stock of Swoze more accurately. Swoze refuses to publish the call and instructs the analysts to keep the information confidential.
After Swoze’s yearly earnings-report call, a news organization named Beelberg obtains a copy of the phone call (without Swoze’s permission). Beelberg publishes a transcript of the entire call in its financial newspaper.
Question: Is Beelberg’s use of the recorded call a fair use?
Lily is outside recording a peaceful day in the city center when a horrible crime occurs nearby her: a man violently beats an innocent bystander. Thankfully, the police quickly apprehend the guilty man. It so happens, that Lily captured the entire event on her smart phone. She offers to sell the video to several local news stations. Channel 2 purchases a right to show it on its news show. Channel 5 records the video from Channel 2’s showing of it and then Channel 5 proceeds to show the video on its own news show?
Question: Is Channel 5’s use of Lily’s video a fair use?
Answer to Question 2
Likely the use is not fair. Factor one: Benny’s use is not transformative. His use is personal consumption, suggesting infringement. Factor two: A song is creative in nature, suggesting infringement. Factor three: Benny copies the entire song, so the amount and substantiality suggests infringement. Factor four: The effect on the potential market is negative because the downloaded copy is a substitute for the authorized copyrighted work in the marketplace.
Because all four factors suggest infringement, Benny’s use is not a fair use. See BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005).
Answer to Question 1
Likely the use is fair. Factor one: Hillary’s use is for a non-commercial purpose, and in particular, a political campaign, which suggests fairness. Factor two: The song is likely creative in nature, suggesting infringement. Factor three: The 15-second time is not a significant amount (1/8th of the total song), although the substantiality of the portion used is not known. Factor four: The potential market effect on the song is likely minimal, given the distinct purpose of Hillary’s—criticizing Donny Dump.
Because most of the factors suggest fairness, the use is likely fair. See Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957 (D. N.H. 1978).
Answer to Question 4
Likely the use is fair. Factor one: Beelberg’s purpose is to reveal valuable information to the public, or in other words, new reporting. This factor favors fairness. Factor two: Although the recorded call is unpublished, Swoze invited hundreds of people (without any apparent restriction) to the call. Moreover, the content of the call is factual in nature. The factor suggests fairness. Third factor: Beelberg copied and distributed the entire recorded call in dissemination of the transcript, so this factor seems to favor infringement. That said, the purpose of news dissemination likely reduces the importance of this factor. Fourth factor: Arguably there is value of the recorded call in its potential to generate licensing revenues. However, Swoze is not likely to develop this market. Given Swoze’s tendency to restrict the call, the market for the transcript is not likely to exist. The value of the content lies in the factual information that it contains, and Beelberg’s use does not diminish that value. This factor favors fairness.
Because three of the fair-use factors suggest fairness, Beelberg’s use of the recorded call is likely a fair use. See Swatch Group Management Services Ltd. v. Bloomberg L.P., 756 F.3d 73 (2d Cir. 2014).
Answer to Question 3
Likely the use is fair. Factor one: The purpose of Lucy’s use (biographical information) is informational and arguably educational, suggesting fairness. Factor two: Difficult to say. Billy’s letters and journal entries are likely his personal thoughts, suggesting creative nature, but the quotations demonstrate factual occurrences, suggesting factual nature. The letter are unpublished which suggests infringement. Factor three: Lucy uses a small amount, and likely the entries are not substantial because they merely demonstrate that facts occurred. Factor four: Given the small amount that Lucy has used, and that the letters and diaries are not for sale, there is not likely a negative effect on the market for the letters and diaries.
Because most of the factors suggest fairness, Lucy’s use is likely fair. Compare Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991) (holding use of unpublished letters and journal entries for biography to be fair use) with Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987) (holding use of unpublished letters for biography to be infringing).
Answer to Question 5
Likely the use is not fair. Factor one: Channel 5 broadcasts the event as part of its news show, so arguably the purpose is news related. However, there was an established market for use of the video clip for this news purpose, so this factor does not likely weigh heavily in the analysis. Factor two: The content is entirely factual in nature, so this factor favors fair use. Factor three: Channel 5 uses the entire video clip, so this factor favors infringement. Factor four: There is an established market for the video, given that Channel 2 has already paid Lily a royalty to show it. Failing to pay the royalty has a negative effect on Lily’s market. This factor likely weighs the heaviest in the analysis, and it favors infringement.
Because the third and fourth factors favor infringement, the use is likely infringing. However, if Lily had not offered the video for sale, Channel 5’s use arguably would be a fair use. See Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997).
There are several affirmative defenses in copyright.
(1) independent creation: a defendant may have independently created a work that is substantially similar to the copyrighted work.
(2) license: the copyright owner may have given permission for the defendant to use the work.
(3) statute of limitations: the copyright owner may have brought suit more than three years after the claim accrued.
(4) copyright misuse: the copyright owner has licensed the copyright in a way that expands his rights beyond those inherent in the copyright.
(5) fair use: the defendant’s use may be a fair one.
Copyright owners usually seek an injunction to prevent further infringement. The Copyright Act provides that courts “may” grant a temporary or final (permanent) injunction as courts “deem reasonable to prevent or restrain infringement of a copyright.” They may also impound or destroy the infringing material. Hence, the Copyright Act provides courts discretion in granting injunctive relief. That said, courts routinely grant injunctions to stop infringing activity.
The Copyright Act provides two forms of monetary relief for a copyright owner. First, the copyright owner may receive both her actual damages and the profits of the infringer. Second, and in the alternative, the copyright owner may receive a statutorily set amount of damages. Additionally, the Copyright Act provides courts discretion to award “a reasonable attorney’s fee” to whichever party prevails in a copyright action.