(919)-825-3309 - Call for a Free Consultation. Experienced & Affordable

Tag: Copyright infringement

Can I use Copyrighted Material? What is the Fair Use Exception?

 

Patent Attorney

Raleigh: 4801 Glenwood Avenue, Suite 200, Raleigh, NC 27612.  

(919) 825-3309  

Email 

Albert Minn is a patent attorney with 10 years of experience practicing before the United States Patent and Trademark Office.  

 

When can I use copyrighted materials? What liability do I incur by using copyrighted materials in my original work? Are there any situations where I can use copyrighted materials?  Section 107 of Title 17 of the United States Code provides the statutory framework for identifying and determining fair use of copyrighted materials, which can be used as a defense against claims of  copyright infringement.

Specifically, 17 USC §107 states, “[t]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified, … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”  But how does one determine whether a particular usage is a “fair use”?  Section 107 of the Copyright Act also details four factors that should be considered when determining whether a particular use constitutes a fair use.  Those factors include:

  1. the purpose and character of the use;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Purpose and Character of Use

Courts address the first factor by determining how you are using the copyrighted work, and are more likely to find nonprofit educational and/or non-commercial uses as fair use.  However, not all nonprofit educational and/or non-commercial uses are fair, and all commercial uses are not fair.  Rather, the courts balance the purpose and character of the use against the other factors.  Also, “transformative” uses, usage of a copyrighted work that add something new, with a further purpose or different character, and do not substitute for the original sue of the work, are more likely to be considered fair use. 

 

Nature of the copyrighted work

Here, courts will analyze the nature of the copyrighted work as it relates to one of the purposes of copyrights: to encourage creative expression.  Thus, a more creative or imaginative work (e.g., fictional novels, movies, songs, etc.) is less likely to support claims of fair use than using a factual work (e.g., news articles).  Additionally, using an unpublished work is also less likely to support a claim of fair use than using portions of a published work. 

 

Amount and substantiality of the portion used

Under this factor, courts will analyze the amount and substantiality of the portion used in relation to the copyrighted work as a whole.  In particular, courts will analyze both the quantity and quality of the copyrighted material that was used.  If the use includes a large portion or percentage of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, courts are more likely to conclude that it was a fair use.  It is important to note though that some courts have found use of an entire work to be a fair use under certain circumstances.  Likewise, in another context, using just a small fraction of a copyrighted work was determined to not be fair use because the selection was the “heart” of the work.

 

Effect of the use upon the potential market

Lastly, courts will review how the unlicensed use harms the existing or future market for the copyrighted work.  For example, courts will look to see whether the use is hurting the current market for the original work.  If the use is displacing sales of the original copyrighted work, courts will not likely not find it to be a fair use.  Courts will also analyze whether the unlicensed use could cause substantial harm if it were to become widespread.

If this analysis for determining fair use seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use.  The amorphous definition of “fair use” exists because judges, and the lawmakers who created the fair use exception, wanted the definition to be expansive and open to interpretation.  If you still have questions or concerns about fair use or other copyright questions, give Grell & Watson a call at (919) 825-3309!

Taylor Swift just can’t “Shake It Off”: Copyright case goes back to court

Patent Attorney

Raleigh: 4801 Glenwood Avenue, Suite 200, Raleigh, NC 27612.  

(919) 825-3309  

Email 

Albert Minn is a patent attorney with 10 years of experience practicing before the United States Patent and Trademark Office.  

 

Yesterday, in SEAN HALL V. TAYLOR SWIFT, No. 18-55426 (9th Cir. 2019), the 9th Circuit Court of Appeals reversed and remanded a lower court’s dismissal of a copyright infringement case filed against Taylor Swift in 2017.  The copyright dispute centers around Taylor Swift’s 2014 hit song “Shake it Off”, and specifically around the lyrics, “[c]ause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate.”

In 2001, Sean Hall and Nathan Butler wrote the song “Playas Gon’ Play” for the group 3 Little Women (3LW), which included the lyrics “[t]he playas gon’ play / Them haters gonna hate”  In filing the copyright infringement lawsuit in 2017, Hall and Butler argued that Swift took the six-word phrase and lyrical sequence and used it in her Billboard Hot 100 hit song. 

However, in February of 2018, U.S. District Judge Michael Fitzgerald dismissed the case and rejected the notion that Hall and Butler had “originated the linguistic combination of playas/players playing along with hatas/haters hating.”  Judge Michael Fitzgerald further wrote that “[i]t is hardly surprising that Plaintiffs, hoping to convey the notion that one should persist regardless of others’ thoughts or actions, focused on both players playing and haters hating when numerous recent popular songs had each addressed the subjects of players, haters, and player haters” when Hall and Butler wrote the song in 2001.  Ultimately, the district court held the lyrics at issue were too brief, unoriginal and uncreative to warrant protection under the Copyright Act.  

But now, a three-judge panel from the Ninth Circuit has found that decision to be premature.  In their reversal, Judges John Owens, Andrew Hurwitz and Kenneth Lee wrote that “originality, as we have long recognized, is normally a question of fact.”  Additionally, the  judges referred to a Supreme Court decision from 1903, where Supreme Court Justice Oliver Wendell Holmes stated, “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”  Holmes further wrote in Bleistein v. Donaldson Lithographing Co., 188 US 239 (1903) that “[a]t the one extreme, some works of genius would be sure to miss appreciation. … At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge.”  Ultimately, the appellate judges felt that “Justice Holmes’ century-old warning remains valid” because “[b]y concluding that, ‘for such short phrases to be protected under the Copyright Act, they must be more creative than the lyrics at issues here,’ the district court constituted itself as the final judge of the worth of an expressive work,” and that “because the absence of originality is not established either on the face of the complaint or through the judicially noticed matters, we reverse the district court’s dismissal.”

The case will now head back to U.S. District Court for further proceedings.  It remains to be seen if Taylor Swift will be able to finally “Shake It Off.”  If you have other questions or need to speak with an intellectual property attorney about copyrights or copyright infringement, give Grell & Watson a call at (919) 825-3309!