Lately, I have had a few clients ask me about fair use in their media platforms (film/TV/webisodes). The only real way to get a sure-fire answer on fair use is by getting sued and having the court determine it. That is never a cheap process either because the issues rarely get resolved by summary judgment by the courts.
The courts would typically look at four factors: (1) the purpose and character of your use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken; and (4) the effect of the use upon the potential market.
- The purpose and character of your use helps determine whether you created something new or just copied something verbatim. Did you add anything new and did it add value to the work? In a Vimeo pilot, could one say that the piece was a new version of the song as sung by the cast, and if so, was it transformative? Depending on the program type, there may be an educational argument, but again, that is no guarantee. In such programming, having the cast comment in an educational manner about the piece you strengthen a fair use case by making it educational.
- The nature of the copyrighted work often gets to whether it is factual or fictional works being used and published v. unpublished works. One has more leeway when providing a public good with facts v. modifying fictional works. The scope of fair use is also much broader with published works as opposed to unpublished.
- The substantiality of the portion taken gets to the amount used. The use of whole songs or portions of songs may matter here and it may not. In some instances, the court may look at how much of the “heart” of the piece you use.
- The effect on the potential market for any material one is using is the final factor. Does the material create an increased awareness of the song and artist? This may or may not matter depending on the court, case, and artist. You do not want to be competing with the artists who make a living off of their songs.
Overall, fair use for media platforms is a question of risk that each project and teams need to assess their risk appetite on. The only sure-fire way to avoid the controversy of eventually having to defend fair use would be to use material already in the public domain. There are search engines that can help you do so. In general, one should be good to use anything created prior to 1929. Another way to protect oneself would be to sign up for a licensing platform/licensing house that would sell individual licenses per material used. This may or may not be cost prohibitive and the risk might be worth avoiding the cost – that is something only you can decide.
If you or anyone you know is contemplating assessing the risk of fair use it is recommended that you seek legal counsel. JTO Legal is happy to help assess business risks – that is why the law firm exists. If interested in discussing further, please feel free to contact JTO Legal and reach out to James T. Olsen at [email protected].
***Some Fair Use Case Studies for further reading***