Intellectual Property | Copyright Infringement | Technology | Software

Fair Use Defense

Fair Use Defense Law Firm – Certain uses of protected copyrighted content can be used legally in your blogs, websites, social media networks and Youtube channels as a fair use.  Likewise, certain uses of software installation and usage may be deemed a fair use.  Content holders have to consider the “Fair Use Defense” or could face a “Bad Faith” DMCA takedown claim.

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This blog highlights our services in the area of fair use copyright and trademark law.  We can help assert claims as a Plaintiff (rights holder) counsel, or defend against unfair and bad faith youtube DMCA takedown letters, aggressive demand letters, and help with counter-notification process for internet websites.  In short, we can help you with online copyright infringement claims!

What is fair use?

Fair use is a defense to copyright law.  If you (as a Defendant or potential Defendant) can meet the terms of the test, WALLAH, there is no infringement and the aggressive Plaintiff (sometimes called a “copyright troll”) will have no case, or a case for REDUCED damages due to settling on a lower figure to resolve the dispute.

Here are the 4 factors a court will weigh whenever looking at a fair use defense claim.

Attorney Steve Tip: this is something every Plaintiff lawyer should review before asserting a copyright infringement claim.  If not, you could find yourself on the long winding road to defeat, or worse yet, face your own lawsuit for “bad faith” for not factoring in the fair use defense before sending a DMCA take down notice.

The four factors to apply are:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

“The first factor in a fair use enquiry is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.  See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, 114 S. Ct. 1164, 1171, 127 L. Ed. 2d 500 (1994).”

“A commercial use weighs against a finding of fair use but is not conclusive on the issue….direct economic benefit is not required to demonstrate a commercial use. Rather, repeated and exploitative copying of copyrighted works, even if the copies are not offered for sale, may constitute a commercial use. See Worldwide Church of God v. Philadelphia Church of God, 227 F.3d 1110, 1118 (9th Cir.2000) (stating that church that copied religious text for its members “unquestionably profited” from the unauthorized “distribution and use of [the text] without having to account to the copyright holder”); See also American Geophysical Union v. Texaco, Inc., 60 F.3d 913, 922 (2d Cir.1994) (finding that researchers at for-profit laboratory gained indirect economic advantage by photocopying copyrighted scholarly articles).  See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001), as amended (Apr. 3, 2001), aff’d sub nom. A&M Records, Inc. v. Napster, Inc., 284 F.3d 1091 (9th Cir. 2002).

  1. the nature of the copyrighted work;

“This factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when [fictional] works are copied.” Campbell, 510 U.S. at 586, 114 S.Ct. 1164. However, “this … factor typically has not been terribly significant in the overall fair use balancing.” Walking Mountain, 353 F.3d at 803 (quoting Dr. Seuss, 109 F.3d at 1402). And although in the present case this factor therefore weighs against Defendants, a Court must also “consider the extent to which a work has been published.” Seltzer, 725 F.3d at 1178. That is, published works are more likely to qualify as fair use because the first appearance of the artist’s expression has already occurred.” (quoting Kelly v. Arriba Soft Corp., 336 F.3d 811, 820 (9th Cir. 2003)). Because in the present case Dr. Seuss published Go! several decades ago—and indeed “Dr. Seuss books have topped may bestseller lists, sold over 650 million copies worldwide, and been translated into more than a dozen languages[,]”  “this factor as a whole … weighs only slightly in [Plaintiff’s] favor.  See Dr. Seuss Enterprises, L.P. v. ComicMix LLC, 256 F. Supp. 3d 1099 (S.D. Cal. 2017).

Works that are creative in nature are “closer to the core of intended copyright protection” than are more fact-based works. See Campbell, 510 U.S. at 586, 114 S.Ct. 1164.  A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1016 (9th Cir. 2001)

  1. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

The third factor concerns both the percentage of the original work that was copied and whether that portion constitutes the “heart” of the copyrighted work. Harper & Row, 471 U.S. at 564–65, 105 S.Ct. at 2232–33. Generally, no more of a work may be copied than is necessary for the particular use. See Supermarket of Homes v. San Fernando Valley Board of Realtors, 786 F.2d 1400, 1409 (9th Cir.1986). The copying of an entire work will ordinarily militate against a finding of fair use, although this is not a per se rule.  See Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1379 (N.D. Cal. 1995)

  1. the effect of the use upon the potential market for or value of the copyrighted work.

As federal courts have noted:

“The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.”
See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577, 114 S. Ct. 1164, 1170, 127 L. Ed. 2d 500 (1994)

The statutory factors are not exclusive. Rather, the doctrine of fair use is in essence “an equitable rule of reason.”  See Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1522 (9th Cir. 1992), as amended (Jan. 6, 1993).

We can help with fair use opinion letters and analysis.

Does fair use apply to both copyright and trademark cases?


9th Circuit Court Federal Fair Use case law snippets

Here are some clips that have some good language regarding the fair use defense:

  • A claim of copyright infringement is subject to certain statutory exceptions, including the fair use exception.10 This exception “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.  See Kelly v. Arriba Soft Corp., 336 F.3d 811, 817 (9th Cir. 2003)
  • Consistent with its policy goals, however, the Copyright Act recognizes certain statutory exceptions to protections on copyrights. At its core, the Act seeks to promote the progress of science and art by protecting artistic and scientific works while encouraging the development and evolution of new works.  See Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 575–76, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). Recognizing that science and art generally rely on works that came before them and rarely spring forth in a vacuum, the Act limits the rights of a copyright owner regarding works that build upon, reinterpret, and reconceive existing works. “Few, if any, things…are strictly new and original throughout.   Every book in literature, science and art, borrows, and must necessarily borrow.  The fair use exception excludes from copyright restrictions certain works, such as those that criticize and comment on another work. 17 U.S.C. § 107. See also Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir.) (holding that fair use “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster”), cert. dismissed, 521 U.S. 1146, 118 S.Ct. 27, 138 L.Ed.2d 1057 (1997).  See Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 799–800 (9th Cir. 2003).
  • Fair use is a mixed question of law and fact,” and therefore is usually adjudicated either at trial or on a motion for summary judgment where no material facts are in disputeLeadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 530 (9th Cir. 2008) (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)). However, a fair use defense may occasionally be resolved on a motion to dismiss when it is appropriately raised and there are no material facts in dispute. Id. Nonetheless, “in light of a court’s narrow inquiry at this stage and limited access to all potentially relevant and material facts needed to undertake the analysis, courts rarely analyze fair use on a 12(b)(6) motion.” Browne v. McCain, 611 F.Supp.2d 1073, 1078 (C.D. Cal. 2009) (citing Four Navy Seals v. Assoc. Press, 413 F.Supp.2d 1136, 1148 (S.D. Cal. 2005); Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1403 (9th Cir. 1997).  See Dr. Seuss Enterprises, L.P. v. ComicMix LLC, 256 F. Supp. 3d 1099 (S.D. Cal. 2017).
  • In determining whether a challenged use of copyrighted material is fair, a court must keep in mind the public policy underlying the Copyright Act. “ ‘The immediate effect of our copyright law is to secure a fair return for an “author’s” creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.’ ” Sony Corp., 464 U.S. at 432, 104 S.Ct. at 783 (quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975)). When technological change has rendered an aspect or application of the Copyright Act ambiguous, “ ‘the Copyright Act must be construed in light of this basic purpose.  See Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527 (9th Cir. 1992), as amended (Jan. 6, 1993)

The general framework for analysis of fair use is established by statute, 17 U.S.C. § 107. We have applied this statute and the fair use doctrine to the disassembly of computer software in the case of Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir.1992) (amended opinion). Central to our decision today is the rule set forth in Sega:

“[W]here disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, disassembly is a fair use of the copyrighted work, as a matter of law.  In Sega, we recognized that intermediate copying could constitute copyright infringement even when the end product did not itself contain copyrighted material.  But this copying nonetheless could be protected as a fair use if it was “necessary” to gain access to the functional elements of the software itself.We drew this distinction because the Copyright Act protects expression only, not ideas or the functional aspects of a software programSee id. at 1524 (citing 17 U.S.C. § 102(b)). We also recognized that, in the case of computer programs, this idea/expression distinction poses “unique problems” because computer programs are “in essence, utilitarian articles—articles that accomplish tasks. As such, they contain many logical, structural, and visual display elements that are dictated by the function to be performed, by considerations of efficiency, or by external factors such as compatibility requirements and industry demands.”   Thus, the fair use doctrine preserves public access to the ideas and functional elements embedded in copyrighted computer software programs. This approach is consistent with the “ ‘ultimate aim [of the Copyright Act], to stimulate artistic creativity for the general public good.’  See Sony Computer Entm’t, Inc. v. Connectix Corp., 203 F.3d 596, 602–03 (9th Cir. 2000).
To be clear, we do not hold that a fair use defense is not available simply because the infringer uses technology to make efficient use of its licenses. The problematic aspect of the Sheriff’s Department’s use is that it took in excess of what it bargained for, not that it was technologically efficient. Thus, for example, if the Sheriff’s Department had saved time and money by hard drive imaging RUMBA software onto the number of computers for which it had licenses, its “efficiency” would not create a problem.  Psystar’s reliance on this quote is misplaced. In Wall Data, the Sheriff Department purchased 3,663 licenses to plaintiff’s software, but installed the software onto 6,007 computers. To do this, the Department used hard drive imaging—a single master hard drive containing the software was used to copy the contents onto many other computers.   The Ninth Circuit held that this was not fair use and was in excess of the licensed use of the copyright software bargained for. While the process used for “efficiency” was not the problem, the Sheriff Department’s unauthorized copying of the software beyond the number of licensed copies was problematic. Similarly, Psystar’s use of Mac OS X has been in excess and has violated Apple’s copyrights.  See Apple, Inc. v. Psystar Corp., 673 F. Supp. 2d 931, 936 (N.D. Cal. 2009), aff’d, 658 F.3d 1150 (9th Cir. 2011).
At trial, the defendant in an infringement action bears the burden of proving fair use.  See Perfect 10, Inc. v., Inc., 508 F.3d 1146, 1158 (9th Cir. 2007)

Sample Fair Use Disclaimer for Video Channel

If you are building a video channel, you might want to watch this video.  Most channels I see use (to some extent) a copyrighted work of another person or company.  This video will help explain how you can minimize your legal exposure if using other pictures, photos, images, audio, or other content in your vids.

copyright fair use litigation

VIDEO:  Watch Attorney Steve explain the use of a disclaimer on your youtube or vimeo videos to show the public and the copyright holder that you consider any use of copyrighted content to be a fair and lawful use. Make sue to SUBSCRIBE to our popular legal channel, now over 4,600 subscribers and moving up fast!

How to fight back against bad faith DMCA take down notices

If you have received a demand letter for something that you consider to be CLEARLY a fair use, read this blog on BAD FAITH DMCA takedown letters.  You may have a cause of action against the overly aggressive copyright holder.

Contact a Fair Use Attorney

We can help review your case whether you are the copyright or trademark rights holder, or defending against a cease and desist letter, DMCA take down notice, copyright infringement letter, DMCA subpoena or any arbitration, mediation, or litigation case.

We also handle software infringement cases that may involve fair use of Autodesk, Siemens, Microsoft, Adobe, CNC, Vero, or some other software and cases involving photo infringement and infringement of movies by illegal file sharing on torrent websites and tube channels.

For more information about our services, and costs, call us at (877) 276-5084.