By attorney Bradlee Frazer, Special to THELAW.TV
"Copyright" is not a verb. It is a noun. We, as human beings, as thinkers of creative ideas, create copyrights (literally out of thin air) when such an idea is expressed into or onto some form of tangible medium. Such a tangible expression is called "a work of authorship." If such works are truly original and not merely copied from, or strikingly similar to, someone else's prior, protectable tangible works of authorship, then a copyright, an incorporeal personal property right owned by the author, is created in the process.
If the newly created work is similar to someone else's work of authorship, then that other author could sue for copyright infringement. In such a suit, the successful plaintiff must claim and prove both that she owns a copyright in the allegedly infringed work and that the defendant's allegedly infringing work is substantially similar — a term of art in copyright law — to the plaintiff's. There is no perfect insulator against such a lawsuit. The best that can be hoped for is to prepare and mount adequate defenses if such a suit is commenced.
One of these defenses to copyright infringement is called the "fair use doctrine." Sometimes, it serves a purpose to use a third-party's works in furtherance of an act of creative expression. If permission cannot be readily obtained, however, such unauthorized use may lead to a copyright infringement lawsuit. In such a lawsuit, the defendant will try to assert, among other defenses, the fair use doctrine, or the fair use defense, as it is often called. The defense teaches that certain otherwise infringing uses of another person's copyrightable subject matter are not, in fact, infringing, and thus the doctrine, if available, creates exculpation from allegations of copyright infringement. Invoking the fair use defense, however, is no easy matter. An author would err if she concluded glibly or prematurely that her use of someone else's content was a "fair use" without performing considerable due diligence on the inquiry before using the other content.
Under the copyright law, the owner of a copyright (typically, the author of the work) possesses certain exclusive rights in the created work (the novel, the play, the movie, the sculpture, the photograph, the painting). These rights attach to the work in the author's favor the moment the copyright is created, which occurs when the sufficiently creative idea is fixed in a tangible medium. Nothing more need be done to obtain these exclusive rights except fix a creative idea into a tangible medium (there are some exceptions to that rule if the person doing the fixation does not, for some reason under copyright law, own the resulting copyright, but here we assume the author owns the copyright). These statutory exclusive rights include: the right to make copies of the work; the right to create derivative works; the right to distribute copies of the work; the right to publicly perform the work; the right to display the work; and, in the case of sound recordings, the right to perform the work by means of a digital audio transmission. The owner of a copyright in a work is the only person who may lawfully do these things with the work. Conversely, doing one or more of these things with a work without the copyright owner's permission is called copyright infringement.
If, however, the use of the underlying third-party work, even if it technically violates one of the other author's copyrights, is a fair use, as defined, it is not an act of infringement. Thus, an understanding of the doctrine will foster an understanding of how third-party works of authorship may be used without the copyright owner's permission, if such is needed or expedient or desirable.
To bring an otherwise unauthorized use within the fair use doctrine's protection, there are two separate and important considerations. First, the use must be for "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." This is the first prong. If the use demonstrably falls into one of these categories, then the second prong of the test is employed, in which a court will consider all of the following four factual factors to determine if the use is a fair use:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
So, if the use falls into one of the enumerated categories AND it can be shown that the purported fair use prevails factually on a majority of the four second-prong factors, the otherwise infringing use might indeed be a fair use, and thus not copyright infringement. The following example will demonstrate how the doctrine is applied.
Assume that an author is writing a novel for commercial publication and wishes to reproduce the lyrics to the song "Little Red Corvette" by Prince in the book. The author is not reproducing the sheet music, and is not including a sound recording of the song with the book. He is merely causing the literal words of the lyric to appear as prose within the book, perhaps by being spoken by a character. Here is the analysis:
(1) Does the author own the copyright to the lyric? No. The author and copyright claimant are Prince Rogers Nelson (Prince's real name). Note that if the answer here is "yes," the inquiry ends, as there is no need for the fair use doctrine;
(2) Does the author have Prince's permission? No. Note that if the answer here is "yes," the inquiry ends, as there is no need for the fair use doctrine;
(3) Is the author's use for "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research"? No. He is writing a novel;
(4) Is the purpose and character of the use commercial or noncommercial? Commercial;
(5) What is the nature of the underlying work being reproduced? Is it highly creative and subject to strong copyright protection, or is it less creative or perhaps even not subject to copyright protection at all? This is a highly creative work that is entitled to strong copyright protection;
(6) Did the author use the whole lyric or just a few words? He used the whole lyric; and
(7) Will the use of the lyric cause Prince to lose money because, e.g., people will not download the song on iTunes anymore? No — the use will likely not cause Prince to lose money.
Of all the fair use factors, the author would only perhaps win on one of them, the last one, and so if Prince sued, the author would likely not be able to successfully invoke the fair use defense. Other defenses may be available, but probably not fair use. As factual patterns change, the above analysis changes accordingly, and so it should be apparent that it is important to apply the tests carefully and correctly before using someone else's words or pictures or music or other copyrightable subject matter without permission. In each case where the use of a third party's copyrightable expression without permission is needed or desirable, the use should be preceded by an analysis under the seven questions.
There is a corollary to the fair use doctrine that will help authors proactively avoid problems with infringement allegations: "Attribution is not permission." Merely giving attribution does not mean that use of the third-party work may proceed without possible copyright infringement liability. If an author cannot obtain permission and cannot definitively conclude the use is a fair use, the third-party content should not be used.
The author, Bradlee Frazer, is a Boise, Idaho, intellectual property attorney. He is the author of a novel, "The Cure: A Thriller." And, yes, his use in the book of part of the lyric from "LaGrange" by ZZ Top is a fair use.