Legalmatter

By: Brian J. Meli

There’s a common belief among the public that copying other people’s songs, videos, pictures or stories—online or off—without their permission, results in one of only two possible outcomes: illegal copyright infringement or fair use.

It’s understandable.

The copyright alarmists, most of them rights owners, would have you believe that most copying falls under the illegal heading, and that infringement is a rampant problem that must be dealt with swiftly and harshly. The fair use crowd, meanwhile, which hails primarily from the academic, scholarly and non-profit communities, advocates for a broad interpretation of fair use principles.

Both sides lay equal claim to the causes of progress and innovation in support of their policy arguments. And they spend such considerable time and resources making these arguments, that those of us less familiar with copyright law could be forgiven for thinking it’s an either/or question: using copyrighted material is either fair use, or its illegal.

Case in point: the recent Lenz v. Universal Music decision, a seven year court battle (yes, seven years) over whether Universal Music impermissibly ordered the removal of an Internet video posted by a mother showing her baby bouncing to the beat of “Let’s Go Crazy,” a song by the artist currently known as Prince. The basis for the suit was a claim that Universal did not meet its good faith requirement to consider fair use before demanding the video be taken down—an argument the 9th Circuit Court of Appeals agreed with. (In other words, a win for the fair use crowd.)

Here’s the video that caused the whole sordid affair:

Lost in all this fair use debate, however, is the fact that, while it’s a powerful tool for countering improper claims of copyright infringement, fair use isn’t the only defense against overzealous rights holders who may be tempted to cross the line into suppressing constitutionally protected expression. In reality, it’s only one of many.

Under U.S. copyright law, the defenses available to would-be infringement are like an onion. Fair use sits at the core of that onion, as the last line of defense. But before it’s even considered, the outer layers must be pierced first.

So here, in broad terms, is a layer-by-layer guide to the copyright infringement defenses.

Defense 1: What you copied wasn’t copyrightable

The Copyright Act extends copyright protection to “original works of authorship fixed in any tangible medium of expression.” This means that non-original works, like naked facts, are not copyrightable. No one can copyright customer data, phone numbers, sports scores, stock quotes, American Civil War battles or the fall of the Soviet Union. It’s true that original expressions of underlying facts are copyright eligible, but the facts themselves belong to the public. Just ask mystery writer Dan Brown about the importance of the factual limitations of copyright law. He was sued for allegedly copying an idea—that Jesus and Mary Magdalene had a child—but, true or not, and luckily for Mr. Brown, no one can own an idea.

For the same reason, the law doesn’t protect themes, genres or plot devices. If it did, there would have been only seven movies ever made in Hollywood. And although it may seem obvious, it bears repeating that copyrightable subject matter includes only tangible works. Ideas alone—even great ones—are not protectable. For copyright to attach, they must be written down, recorded or otherwise rendered in some tangible form.

No one owns concepts, facts, ideas, themes or plot points

So the next time someone claims your YouTube video copied his idea, or that your presentation on the plight of 19th Century Irish potato farmers infringes an earlier work on the same subject, you can probably expose such claims as frivolous merely by pointing out that ideas and facts are non-copyrightable subject matter.

Defense 2: You didn’t copy

The second question to ask is also the most obvious one: did you make a copy? It sounds simple enough, but to co-opt a phrase from billionaire investor Warren Buffet: just because it’s simple, doesn’t mean it’s easy.

Copyright law doesn’t require an exact reproduction for a claim of infringement to be actionable, but it does require a subsequent work be “substantially similar” to a preexisting one. How similar is substantially similar? That depends on the nature of the work. In the case of a song, one or two notes isn’t enough; but one or two stanzas may be. Often times, a similar sequence or common pattern is all it takes. We saw this when Robyn Thicke and Pharell Williams were found guilty of infringing Marvin Gaye’s “Got to Give It Up” with their hit single “Blurred Lines.” (For a quick demo of what two substantially similar songs sound like in the 9th Circuit, click here.)

In visual art forms, similarity can depend on the nature and character of the work itself. Take the case of Rentmeester v. Nike Inc., another recent 9th Circuit dispute involving a photographer suing Nike for allegedly infringing his photograph with the company’s Jordan Brand “Jumpman” logo. Using its extrinsic/intrinsic test, the U.S. District Court of Oregon looked to the original photograph’s expressive elements, and decided that Nike did not copy those elements to a degree necessary to establish substantial similarity.

Different courts define substantial similarity differently, and use various tests to determine its presence. Sometime’s it’s an open and shut question, sometimes it’s a close call. But in every case it’s a question of fact for a jury to decide, making the outcome unpredictable and often inconsistent. Add to that the fact that a plaintiff must establish that copying actually took place in order to prevail in an infringement action, and it becomes clear why this is definitely not a point to concede in a rush to claim fair use.

Are these two images and their derivatives substantially similar?

Using the Lenz case and the bouncing baby video as an example, it’s not inconceivable that a few seconds of rhythm from “Let’s Go Crazy,” relegated to little more than background noise beneath a variety of ambient sounds, in a video clip of extremely poor audio quality, didn’t even constitute misappropriation. Watch the video again. Could you make out what song it was if Universal hadn’t made an issue of it? At the very least, it’s debatable. But since the Lenz case was based solely on Universal’s responsibility to monitor for fair use, the copying question was never raised.

The bottom line is this: if something you draw, write, photograph, design, paint, perform or record and share online becomes the subject of a cease and desist letter or a takedown notice, don’t be too quick to dismiss the idea that it isn’t a “copy” in the legal sense. After all, all art borrows from that which came before. The only question to resolve is: how much is too much?

Defense 2.5: You didn’t do anything else prohibited by law

Copying isn’t the only thing copyright law protects against. The Copyright Act grants a number of exclusive rights to copyright owners; the right to reproduction being just one of them. Sometimes referred to as a “bundle of rights,” these are things that only copyright owners may do with their work. Or put another way, copyright owners may prevent others from doing any of these things. The flip side of that, though, is that if you aren’t doing any of them, you aren’t guilty of copyright infringement.

In addition to the right to reproduce a copyrighted work, this bundle of exclusive rights includes: the right to distribute copies of the work to the public, the right to perform and/or display the copyrighted work publicly, and the right to adapt the work.

So if, for example, you’re merely sharing links to copyrighted works online, you’re not guilty of distributing them, since you’re not making copies, or making them publicly available. No data is being transferred and no files are changing hands. You’re merely directing others to URLs where the works are located. Likewise, if you’re only using copyrighted works for personal viewing, or for private uses like research, you’re not guilty of displaying them publicly.

If you’re creating something new based on an earlier work, you could potentially be guilty of infringing a copyright owner’s right to adapt the original (also known as the right to prepare a derivative work), but only if your new work results in one that is substantially similar to the original. And having read this far, you already know that’s not always a question with a clear cut answer.

In copyright law, like in most areas of the law, the legal definitions of words often depart from their colloquial meanings. Words like: “reproduce,” “distribute,” “display,” “perform” and “adapt” are legally operative terms that were written and defined long before the social media phenomenon, or even the Internet. And as these terms continue to be re-defined and re-interperetted as technology evolves, it’s important to point out that our notions of “posting” and “sharing,” as those terms are commonly understood, are not necessarily equivalent to any of them.

Defense 3: You had permission to copy

So you’ve taken a work that’s protected by copyright and you’ve copied it, or otherwise done something with it that’s prohibited by law. Now that’s copyright infringement, right? Not necessarily. Even if you’ve done all of the above, you may still have had permission to do it.

But certainly you’d know if someone gave you permission to copy their work, you say? Maybe, but not necessarily. In the copyright world, giving someone permission to copy is called granting them a license. But for a number of reasons, it isn’t always obvious when that has taken place.

When you sign up for an online service (or even an offline one, for that matter), you’re usually required to agree to the terms and conditions of that service. If you actually had the time and inclination to read these terms (don’t worry, no one does), you would, more often than not, find copyright license grants buried in them. For example, here’s the license you grant to Instagram when you sign up for an account:

[…] You hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy.

What does that mean, exactly? Well, the short version is that you’re agreeing to let Instagram do practically anything it wants, and potentially give others the ability to do anything they want, with the stuff you put on its servers. This is why you can repost, repin, reblog and retweet things posted to social media until your heart’s content, without fear of prosecution. You’re allowed to do things that might otherwise be considered infringement because whoever uploaded the original material gave the site—and by extension, its users—permission to copy and distribute the uploaded content via its platform. And Instagram, Twitter, et al. do exactly that, millions of times over, in some cases.

All social media sites have these license grants embedded in their terms of service. But even if they didn’t, the mere act of uploading a copyrighted work to one of them would probably constitute an implied license to copy it within the parameters of the site. An implied license isn’t technically a license at all, but a concept that gives people permission to copy a work, not by formal agreement, but because the copyright owner manifested a clear intent to consent to it. In other words, if I didn’t want my pictures repinned by thousands of people around the world, I wouldn’t have uploaded them to Pinterest. Simple enough.

While you can more or less share things with reckless abandon across social media platforms, trouble enters the fold when you take something off Instagram’s or Pinterest’s servers and use it outside their services. Once you do that, you run the risk of infringing, because no license, express or implied, extends to user activity outside the scope of the services themselves.

Permission to copy can be unknowingly gotten in other ways, as well. For example, if you’ve ever copied an image or video you found online to a personal website or blog, you might assume that doing so automatically branded you an infringer. But that may not necessarily be the case. More and more visual works are being uploaded with little or no restrictions on them, by artists who are waiving their rights for the sake of getting broader exposure. These artists routinely grant free licenses through the Creative Commons system, requiring only an attribution in return. And sometimes they even commit their work to the public domain. So if your Google Images search turned up one of these images, you wouldn’t be guilty of anything by using it. The only way to know for sure, though, would be to look into the usage rights, something that a majority of people don’t take the time to do, unfortunately. 

Since relying on luck isn’t a strategy for avoiding copyright liability, it’s always a good idea to research the usage requirements associated with any image you find online before you use it. Google offers some helpful tools to do this, as do many photo sharing sites. And there’s a great blog called Copyright stuffs that’s filled with helpful tips for locating and licensing free imagery on the web.

Defense 4: It was fair use

Now, finally, we come to fair use. If you’ve gotten this far, it means you’ve copied something. It also means that the something was the subject of a valid copyright, that you did something to infringe that copyright and that you didn’t have permission to do it. Fair use is now your only chance for avoiding liability.

This is not, however, an article about fair use. There are already plenty of those circulating around the web. So I’ll restrict my remarks on the subject to a brief summary of the four fair use factors (each of which could be an article unto itself). I will also note that fair use is an affirmative defense; meaning that, once you ask the fair use question, you’re essentially conceding that you’ve infringed. To argue fair use is merely to argue that you’re excused from liability for the infringement because your use qualifies as an exception. This is why it’s always the last question to ask in an infringement defense, and not the first.

The 5 fair use factors are:

Purpose and character of a work: Has a work been “transformed” into something new by adding expression, meaning, insight or understanding? Parodies, satires, criticisms, critiques and commentaries of copyrighted works are usually considered transformative, as are uses for scholarship, research and education.

Nature of a work: Fact or fiction? Works of fiction are generally given more protection than works of non-fiction, since facts alone cannot be copyrighted.

Amount and substantiality taken: How much of the work was used? The less you copy, the more likely it will be considered a fair use. However, even a de minims use can be considered infringement if what you’ve copied is at the heart of the work.

Effect upon the market: Does your use of the copyrighted material deprive its owner of income? If the use has a negative economic effect on the market—or even a potential market—for the original, then fair use is less likely to apply.

To understand how fair use is determined, it’s important to realize that all four of these factors are viewed in totality, so there is no automatic exemption if you meet one or more of them. But they also need not all be decided in your favor to succeed on a fair use defense. Each factor is given due weight, but not always equal weight. The amount of consideration each one gets varies depending on the factual circumstances.

Neither fair nor foul

There’s a lot of copying going on today; both in the virtual world and the real one. A lot of it is infringement, and a lot of it is fair use. But a lot of it is neither. And it’s those cases—the ones that fall in between—that tend to get overlooked in mainstream copyright discussions. But as public calls for comprehensive revisions to the Copyright Act, and even a wholesale overhaul of U.S. copyright law grow louder, it’s especially important to understand what copyright law protects, and what it doesn’t; and to know that a great deal of copying is neither fair, nor foul.

The content of this blog is intended for informational purposes only. The information provided in this blog is not intended to and does not constitute legal advice, and your use of this blog does not create an attorney-client relationship between you and attorney Brian J. Meli. Under the rules of certain jurisdictions, the material included in this blog may constitute attorney advertising. Prior results do not guarantee a similar outcome. Every case is different and the results obtained in your case may be different.