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.
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.