Intellectual Property

Raindrops On Roses And Whiskers On Kittens . . . And A Few Of My Favorite Fair Use Things We Enjoy Every Day

The next time you use a search engine, enjoy parody, share a meme, or read the news, give thanks for fair use.

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I couldn’t let Fair Use Week pass by without posting about fair use (same disclosure as last year: I coordinate Fair Use/Fair Dealing Week, so this is a shameless plug), which I’ve talked about on this blog here, here, here, here, here, and . . . okay, I talk about it a lot, but there’s a very good reason. Fair use is critical to a functioning copyright system and we rely on it every day whether we realize it or not. If we didn’t have fair use, we’d say goodbye to search engines, memes, documentaries, and more. So, in celebration of Fair Use Week, here are some of my favorite things we enjoy thanks to fair use.

1. Parody: Right up at the top of the list is parody, in part because I recently saw Seth Meyers’s parody of various movies (such as The Green Book, Hidden Figures, The Blind Side, and others) entitled, “White Savior: The Movie Trailer” with the tagline, “A movie about a black woman who made history and a man who was white when she did.” It is hilarious and we have fair use to thank. Other great examples of parody? Saturday Night Live, songs by “Weird Al” Yankovic, the novel The Wind Done Gone, and 2 Live Crew’s parody of “Oh, Pretty Woman” — which resulted in a SCOTUS holding confirming that parody is, indeed, a fair use.

2. Political Commentary: Do you watch The Daily Show with Trevor Noah? Or Last Week Tonight with John Oliver? These shows rely on the ability to use clips for the purpose of illustration, juxtaposition, humor, and political criticism. The use of clips can illustrate hypocrisy and absurdity by politicians, commentators, lobbyists, and more. These shows simply wouldn’t be the same without fair use.

3. Memes and GIFs: Many memes and GIFs are parodies or commentary in some way and fall under fair use. They’re shared far and wide on Facebook, Twitter, and Instagram, on blog posts and emails. They are unlikely to affect the market for the original — no one actually believes that someone is going to watch a GIF of Hulk rampaging instead of actually watching the full Avengers movie. The Internet would be sadder for lack of memes and GIFs, so do a happy dance for fair use.

4. Remixes and mash-ups: In today’s world, it’s easy to remix songs, films, and art work to create new works. And it. Is. Marvelous. Check out one of my favorite examples, created by Movie Remixer on Youtube which mashes up 66 movie dance scenes from 60 different movies with Justin Timberlake’s 2016 song, “Can’t Stop the Feeling.” What’s amazing is that it mashes up old classic movies to recent blockbusters and many of the movies used really have nothing to do with dancing.

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5. Documentary Films: Documentary films rely heavily on fair use (see the Documentary Filmmakers’ Statement of Best Practices in Fair Use). While some footage used in documentaries may be licensed, often times documentary filmmakers rely on fair use. Remember that the next time you’re watching the latest Ken Burns documentary.

6. Feature Films: Think fair use is relegated to documentaries only? Think again. Fair use has been successfully invoked on a number of occasions related to film. Take the Academy Award-winning film, Midnight in Paris, for example. In Midnight in Paris, the main character (played by Owen Wilson) travels back in time to the 1920s and hangs out with famous artists and writers like Scott Fitzgerald, Ernest Hemingway, and Gertrude Stein. At one point, the main character quotes a nine-word line from William Faulkner’s novel Requiem for a Nun and attributes it to Faulkner. The Faulkner estate sues, but the studio wins. Because fair use. You’re welcome.

7. Fan Fiction: There are many sites dedicated to fan fiction, a genre where individuals use existing characters from popular television, movies, or books and create new stories. In perhaps one of the most well-known instances of fan fiction, Fifty Shades of Grey initially started out as fan fiction based on the Twilight series by Stephanie Meyers. Other authors honed their craft writing fan fiction, for example Meg Cabot, author of The Princess Diaries.

8. Search engines: Do you use a search engine every day? Thanks to various cases — Kelly v. Arriba Soft, A.V. v. iParadigms, Perfect 10 v. Amazon, Authors Guild v. Google, White v. West, Authors Guild v. HathiTrust — all holding in favor of fair use, ingesting information into a database to make information searchable is legal. In creating these search engines, copying entire websites and indexing them to make them searchable is necessary; without fair use, such copying would likely violate copyright. Finding the address and telephone number of a restaurant, solving an argument about who the 21st President of the United States was, or looking up song lyrics is so easy today thanks to fair use and search engines. Also, while we tend to think about search engines in terms of web text — like Google or Bing — don’t forget that there’s image searches and audio searches, too.

9. DVRs, TiVo, VCRs: In a case that went all the way up to the Supreme Court, known as the “Betamax” case, time-shifting (recording a program for later viewing) was upheld as a fair use. This case — which was actually narrowly decided — paved the way for DVD players, TiVo, and other DVR services.

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10. Reviews of films, books and art: Criticism isn’t just for political commentary, but also for reviews of copyrighted works including films, songs, books, and art. There are entire professions built around criticism, which is made possible through quotations, clips, and pictures that are fair uses.

11. News: Do you read or watch the news? It’s so much better when you have the direct quote from a speech or interview, rather than just a paraphrase. Any good lawyer knows that words have meaning (those three words were drilled into my brain 1L year by a criminal law professor who couldn’t get through a single class without emphatically stating, “words have meaning”) and a paraphrase often doesn’t cut it. Thankfully, we can determine exactly what was said whether it’s reprinted in a news article or shown as a news clip on television because quoting and reprinting to report the news is a fair use.

So the next time you use a search engine, enjoy parody, share a meme, or read the news, give thanks for fair use.

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 [email protected].

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