Lately, I’ve been seeing a lot of misinformation online and in groups I belong to on the topic of copyright law and the fair use doctrine as a defense to copyright infringement. The people giving this advice are not licensed attorneys, but rather, are fellow business owners who are just trying to help. The problem is they are giving bad advice at best, and at worst, some people may be unwittingly relying on their misinformation. My favorite part though, is when I take the time to chime in and answer a question and the wannabes argue with me and tell me how wrong I am and cite some random internet post. Just because someone wrote a post or answered a question in an online forum online doesn’t make it true or mean that a qualified attorney with experience in the area wrote the article or answered the question! The purpose of this blog post is to demystify the misconceptions I often see around copyright infringement and the fair use doctrine.
Fair Use is a Defense to Copyright Infringement
Myth #1: Fair Use is not a right given to intellectual property owners. You don’t claim it like you do other ownership rights. Rather, it is a defense to a claim for copyright infringement. What that means is if you claim “fair use,” you are acknowledging you infringed someone’s copyright. That’s a huge difference in positioning! Implicit in the word “defense” is the fact that you admit you copied or borrowed the copyright protected work without permission from the copyright owner. This is not something you should do lightly and certainly not without first consulting your IP lawyer. There is no possible way any artist or business owner can determine on their own whether their contemplated use is fair use when courts cannot even agree on what constitutes fair use from one case to another.
There is No Bright Line Rule for How Fair Use is Determined
Myth #2: Courts disagree regularly on what constitutes fair use, so I’m not sure how the wannabe lawyers of the world are such experts on the doctrine! It’s one of the most complicated and litigated issues in all of copyright law. Yes, it’s true, there is a four-factor test, but it is a balancing test. A balancing test is a fancy way of judges giving themselves a way to decide each case based on the facts. I discuss the four factors of the fair use doctrine here. For instance, here are two cases where the same court came to two different conclusions on fair use. You can read more about the Second Circuit’s finding of transformative fair use in the Google Books case here, and my blog post on the TVEyes case here, where the Second Circuit found infringement, denying TVEyes’ claim of fair use. I hope this illustrates how complicated an issue fair use truly is.
“For Educational Use” is Not a Get Out of Jail Free Card
Myth #3: Two things I want to say about “educational use” – first, it does not generate an automatic finding of fair use, and secondly, and perhaps, most importantly, if you are a course creator, like I am, then you likely do not fall into this prong of the fair use exception. The purpose of the fair use exception is to determine if the use is for commercial purposes or if the use is for “nonprofit educational purposes.” This is the nuanced part of the law that the wannabe lawyers are likely not understanding or finding in their searches. So, let me be clear. Stop trying to be cute. The law is not based on your ability to outsmart the legal system, and I see comments to this extent all the time. If you run a business, you most likely fail the first prong of the fair use test. There is no reason to go on from there (unless you are creating a parody). Since most of the clients and prospective clients I work with are asking about wanting to use a copyright protected work for a commercial purpose, the inquiry ends there.
It’s always a best practice to create your own content, especially if you are an artist or a course creator. If you want to utilize someone else’s work, ask for permission. An IP attorney can help you navigate how to do that to be sure you are asking for permission properly and if there is a license, negotiating those terms properly. The penalties for copyright infringement are steep, so please know that if you are relying on information you teach yourself or learn from your online social media group, you may not be properly protecting yourself from liability. One last thing I hope all busines owners already know, just because something is on the internet does not mean, it is free or available for the public to use. That content was likely created by someone and you need to make sure you have the right to use it before you do, especially for any business purpose. If you have any questions about copyright, the fair use defense, or if we can help you with any of your intellectual property needs, please contact us.
Stacey C. Kalamaras is the founding partner of Kalamaras Law Office, LLC. She has extensive intellectual property experience with a particular focus on trademark prosecution and enforcement. She has protected some the world’s largest brands in more than 150 countries and specializes in helping small and medium sized businesses grow and protect their brands. Contact her at firstname.lastname@example.org.
Stacey is also the founder and lead instructor of Trademarkabilities®, an online trademark academy for lawyers, whose mission it is to prepare lawyers to be confident and effective practitioners before the USPTO. To learn more, please visit https://www.trademarkabilities.com/.