Coming to New Terms with Fair Use

by Kenneth D. Crews

One of the virtues of the passage of time is that you get to see a lot of stuff happen and change.  Having spent much of my career on fair use, I have seen many perspectives and takes on this vital copyright doctrine.  It continues to pose challenges and sometimes even offer welcome solutions.  Now is the beginning of Fair Use Week, and I am still coming to terms with the essence of fair use and how it serves different people in different situations in different ways.  From a right, to a defense, to a policy, and to risk implications – perspectives on fair use are shaped by the needs of the community, the legal system, and even personal proclivities.

Right or Privilege?

Some travails about the character of fair use are familiar.  For decades, one debate over the nature of fair use has persisted:  Is fair use a right or a privilege?  My first answer today is the same as it was long ago:  It does not matter what we call it, as long as we are consistent.  My main point of consistency, however, is that we should label all copyright opportunities with the same terminology and give them the same conceptual status.  If fair use is a right, then owners also have rights.  If fair use is a privilege, then ownership is also a privilege.  Frankly, I think “rights” is more accurate.  The overriding concept is that fair use is an integral part of the formula and structure of copyright.  The law is itself a bundle of rights for owners as well as for users.

Right or Affirmative Defense?

One argument against a fair use “right” is its role as an affirmative defense.  What is the position of fair use in the legal system?  Is it really a right that may be asserted by users in a manner that is legally protected, or is it only a defense to raise in response to an infringement lawsuit?  Judicial opinions suggest more strongly than ever that fair use is both.  It is unquestionably a defense in litigation, but fair use is today comfortably recognized as an opportunity for users to be proactive in their asserting of a valid and protectable ability to use a copyrighted work.

The dancing baby video implicitly makes this point.  In Lenz v. Universal Music Corp., a mother who took great delight in her your child dancing to the music of Prince, posted to YouTube a video of her buoyant and happy daughter, with the recording of Let’s Go Crazy playing in the background.  The court did not actually rule that the use of the music was fair use, but did hold that a copyright owner is obliged to give some consideration to the possibility of fair use when sending a takedown notice.  That decision effectively integrated fair use into the full calculation of the expanse of the owner’s rights.

Fair Use as Policy

As fair use assumes a more secure place as a set of public rights, and as part of the definition of a limited scope of authority that belongs to the copyright owner, users and their host institutions – whether nonprofit universities and libraries or commercial entities and major businesses – find today that having a policy on the scope and application of fair use is imperative.  The policy can be practical.  It can guide members of the community through the meaning and application of the law for their common needs.  The policy can also be conceptual.  It can be a vision statement about the importance of the law in support of the mission and goals of the organization.

A good policy can be both and maybe even more.  Our understanding of fair use is a policy decision by itself, and recent litigation involving fair use and electronic reserves at Georgia State University has underscored the importance of having a good policy.  That same litigation also has helped us better see the policy positions we ought to be avoiding.  Through much of the case, as it proceeded through trial and appeal, the publishers bringing the legal action pressed the court to adopt interpretive guidelines from 1976 as the standard that should be applied and enforced as a policy limit at the university.  The judicial rulings on this case firmly rejected that approach and criticized the 1976 guidelines as too rigid and too narrow to be the right standard.

Rise of Risk Analysis

Probably everyone reading this post knows that a determination of fair use is based on an application of the four factors in the statute.  However, I note a strong trend to fold a risk analysis into the decision.

Consider a common scenario:  Professor wants to digitize clips of motion pictures for use in a film analysis course.  The four factors may well point to fair use, especially if the clips are short and they are used in a manner that tightly ties the use to and educational objective.  The professor can become more reticent about fair use, however, when the films are owned by major production companies, or if the resource is used by a large group.

The decision to proceed might also depend on some technical aspects of copyright law, including whether the films are registered with the U.S. Copyright Office, which in turn can shape some infringement risks and the prospect of statutory damages and attorney’s fees.  The initial question may be about fair use, but realistically our answers are often based on much more.

Sometimes Too Much

For some users, fair use is more than they are ready to absorb.  I have worked with colleagues who, in some situations, have been unwilling to take on the challenge and risks of fair use.  The reasons are many.  Sometimes the task is daunting – which is more often true when the project is expansive, the activities are high-profile, and infringement liabilities could escalate quickly.  Sometimes the colleague is simply not ready to take on the risks.  I might make a strong pitch for fair use, but sometimes accepting and applying fair use can be a personal decision about risks, pressures, and disruptions.

These episodes remind us that fair use can also be characterized as a set of responsibilities.  It is a right of use, and the factors call on us to responsibly consider the implications of the use on the market for or value of the original work.  Because fair use also calls on us to exercise a right under the law with legal consequences, we need to be respectful and responsible toward ourselves.  Each of us will engage with fair use differently, and we should act with awareness of the real implications of our decisions for ourselves and others.

International Export

As a final note, we need to appreciate that fair use has also fast become a major American cultural and economic export.  In my blog post from Fair Use Week 2016, I wrote in some detail about the appearance of similar statutes in the copyright law of a short list of countries.  That list continues to expand.

Most recently, a commission of the Australian government has issued a report recommending in strong terms the adoption of an American-style fair use law in Australian copyright.  The report from the Australian Productivity Commission addressed directly the numerous arguments against fair use, and endorsed the role of fair use as a means for infusing the law with flexibility and supporting the evolution of business markets and economic conditions.

The Continuing Evolution of Fair Use

Fair use can be understood in many ways, and it will always be many different things simultaneously.  As we strive to give the law a fresh meaning we are doing exactly what fair use was intended to do:  Serve as a flexible doctrine, adaptable to new and changing needs.  Fair use adapts fundamentally by allowing new uses of new works and by functioning in a context of rapidly changing needs and technologies.  Fair use must also be understood in yet other ways.  In the hands of the public, it is a tool for advancing education and more, but it is also a manifestation of legal risks and policy positions.

Despite the challenges of fair use, it is a welcome addition to the law of a growing list of countries.  Fair use fulfills conceptual and practical needs, and it has become a hallmark of a copyright law that truly serves the purpose of advancing knowledge and creativity.

Kenneth D. Crews is the author of numerous publications on copyright, including Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions (4th ed., forthcoming 2017).  He served on the faculty and established copyright policy offices at Columbia University and at Indiana University.  He has given copyright presentations in nearly every U.S. state and in about 30 foreign countries.  Dr. Crews is based in Los Angeles with the firm of Gipson Hoffman & Pancione.

Disclosure: He testified as an expert witness in the mentioned Georgia State University case, and he met with the Australian commission as it considered its recommendations on fair use.