Intellectual Property

Fair Use For Me, But Not For Thee

Fair use is for everyone and benefits rightholders just as it benefits consumers.

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A common misconception about fair use in copyright law is that it is relied upon solely by consumers. The reality, however, is that everyone uses fair use, including large rightholders like movie studios and publishers. Even while rightholders are often seen as advocates for strong intellectual property rights, even while they oppose fair use when bringing a lawsuit themselves, they are not shy in asserting their own right to fair use.

Take this recent story about the Michael Jackson Estate suing Disney over the documentary, The Last Days of Michael Jackson, for example. Not surprisingly for a documentary, the film uses clips of existing content. Documentary filmmakers often rely on fair use when incorporating existing content — news clips, footage of the documentary subject, video of the events, etc. — and there’s even a code of best practices on this topic. In defending the documentary, Disney relies on fair use: “This case is about the right of free speech under the First Amendment, the doctrine of fair use under the Copyright Act, and the ability of news organizations to use limited excerpts of copyrighted works — here, in most instances well less than 1% of the works — for the purpose of reporting on, commenting on, teaching about, and criticizing well-known public figures of interest in biographical documentaries without fear of liability from overzealous copyright holders.” And Disney is right. Documentary filmmakers successfully rely on fair use all the time.

What makes the story interesting is that Disney is notoriously aggressive in asserting its intellectual property rights, oftentimes dismissing the fair use rights of others. The Michael Jackson Estate points this out in its complaint: “Apparently, Disney’s passion for the copyright laws disappears when it doesn’t involve its own intellectual property and it sees an opportunity to profit off of someone else’s intellectual property without permission or payment . . . Apparently, Disney claimed that simple amateur photographs of Star Wars characters in toy form infringed Disney’s copyrights in the characters and were not a fair use.” As Eriq Gardner of THR, Esq summarizes in his recent coverage, there are numerous examples of aggressive enforcement by Disney: “Disney threatened to sue childcare centers for having pictures of Mickey Mouse and Donald Duck on the wall; Disney once sued a couple on public assistance for $1 million when they appeared at children’s parties dressed as an orange tiger and a blue donkey; Disney sent takedown notices to social media services upon users posting photographs of their new Star Wars toys; and so forth.” But when Disney is the subject of a copyright infringement lawsuit, the company asserts a strong fair use right.

Disney isn’t the only rightholder that is a little hypocritical when it comes to the application of fair use. Until rightholders are on the defendant side of a copyright infringement suit, however, they can be pretty aggressive in advocating for expansive rights and often take narrow views of fair use. The National Football League, for example (not unlike other sports organizations and associations) includes an overly broad claim at the start of each of its broadcasts: “This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited.” Any use? Really? And, according to this statement, you’re not even allowed to describe the game without the NFL’s consent. That seems to be a pretty clear overreach. I’d like to see the NFL try to enforce a prohibition of describing an NFL game in court.

The NFL has also tried to enforce its claim, at times ignoring fair use applications. For example, Ars Technica covered back in 2010, a law professor uploaded a clip of the copyright notice and a few seconds of the telecast of a Super Bowl game, to provide an example for her copyright class. The NFL sent a takedown notice to YouTube, then after the law professor sent a counternotice and the video was restored, the NFL sent yet another takedown notice.

But what happens when the NFL is the subject of a copyright infringement suit itself? In Bouchat v. Baltimore Ravens, the NFL decided it was a pretty good idea to assert fair use. Bouchat has a long and complicated history, with multiple lawsuits, but the important facts for the purposes of this post is that an artist sued the Baltimore Ravens and the NFL for infringing his logo design and that the NFL raised on fair use. As film associations noted as amici in support of the NFL, “Much creative culture is iterative; new works often do not arise in a vacuum, but rather are influenced by and draw upon the creative works that came before. As the Supreme Court held in Campbell, highly transformative works lie at the heart of fair use’s protection: they are the new expression that copyright law is meant to promote.” One of the Bouchat opinions noted, “the NFL may not arouse sympathies in the way that a revered artist does, but the consequences of this case reach far beyond its facts. Society’s interest in ensuring the creation of transformative works incidentally utilizing copyrighted material is legitimate no matter who the defendant may be.” In other words, rightholders have a right to rely on fair use, too. I only wish they took a balanced view of copyright with respect to their own content.

Publishers similarly advocate for strong intellectual property protections and often take a narrow view of fair use. In Authors Guild v. HathiTrust, a case involving the mass digitization of works to create a searchable database, including making works accessible for those with print disabilities, rightholders argued that fair use did not apply. The Association of American Publishers (AAP) as amici argued that digitization, creation of optical character recognition copies, ingestion into a database, preservation of the works and creation of accessible formats for those who are visually impaired were “unprecedented uses [that] far exceed anything contemplated by Congress as falling within . . . fair use and beyond what any single sitting judge can properly authorize.” This argument was rejected by Second Circuit, which found that the fair use statute and precedent clearly supported a finding of fair use.

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While publishers took a dim view of fair use when libraries were creating own searchable database (and providing accessible copies for people who are blind or print disabled), they raised fair use as a defense in the creation of a publisher-owned database. In White v. West Publishing (litigation that happened at the same time as HathiTrust), two attorneys — Edward White and Kenneth Elan — claimed copyright infringement after West Publishing and Reed Elsevier ingested legal briefs written by these attorneys into their Westlaw and Lexis databases. The databases converted the legal documents into text-searchable electronic files and tagged it with metadata to allow the users to find and retrieve the documents more easily and included links to other filings in related cases and links to authorities cited. Anyone who has gone to law school understand the benefit of these online searchable databases and the content within them serve a much different purpose than the one for which they were originally created. The publishers noted in their filings that fair use is a “necessary tool to further the goals of copyright law” and successfully relied on this doctrine in the creation of its database.

It’s important for content creators and large rightholders to take a more balanced and nuanced approach to copyright. Fair use is for everyone and benefits rightholders just as it benefits consumers. If Disney and other rightholders continue to aggressively pursue users for copyright infringement, even where fair use applies, it should get used to being called out for hypocrisy just as the Michael Jackson Estate did.

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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