Fair Use - A Shield, Not A Sword

Fair use is not an invitation to poach the intellectual property of others instead of creating your own work. Rather, fair use is simply an exception to the monopolistic rights that the law grants the owner of a copyright.

Fair use allows you to create something new and different using someone else’s creation as an ingredient, a single element in a new mix. Fair use is most often seen as a defense you can use when you are sued for copyright infringement and a defense that can be used against you, if you go after somebody for using for example, a clip from one of your films.

This is the most important exception to the rights of copyright owners. It is also the area of copyright law that is changing the most rapidly. If you have not used someone else’s copyrighted material, there is no need to address the question of fair use. Fair use is the lubricant between copyright law and your First Amendment right to express yourself for good or bad about this book or anything else.

When you think about fair use, think good manners. They are both rooted in the same basic tenet of consideration for your fellow humankind. There are only a few rules that apply always in all situations. The overriding rule is that there are no rules that apply in every situation. Courts recognized that it simply was not fair to say that every copying of a copyrighted work was a violation of the law. Some copying was necessary to promote the very creativity that the copyright law was designed to promote. For instance, if you are critiquing this book, a quote or two from the book might be helpful. But if I didn’t like you or what you had to say about my book, I could stifle your commentary except for the fact that your use would be protected by the concept of fair use.

Since it has been imbedded in Section 107 of the Copyright Law, fair use has only been the subject of a very few cases that have gone all the way to the Supreme Court. Each of the cases was reversed at each level of review. Two of the cases were split decisions at the Supreme Court level (even learned justices do not agree). It is hard to articulate what is fair use in abstract, objective terms. It always requires an examination of the specific facts of the case.

If you are faced with fair use questions, you really need a good lawyer and a solid internal compass to mark the path between the fair use of that which was created by others and the use of someone else’s creation that will require that person’s permission (which almost always means a payment to that person). As a personal rule of thumb, you should always err in favor of asking for permission and paying a reasonable fee, unless you are absolutely sure it simply will not do any good to ask. Even then it is probably better to ask and get a refusal on record just in case they come after you later. It shows good faith on your part. Sometimes, the message that conveys the refusal to give permission will also express a distaste for your point of view, which bolsters your First Amendment argument in favor of fair use.

When we were clearing clips for the Oscar-nominated film Smoke and Mirrors, we faced just such a situation. The film was about the tobacco industry’s use of advertising and product placement in feature films to entice the nation into an acceptance of smoking by others and the habit of smoking on an individual basis. The story could not be told effectively without the use of television commercials for tobacco. But the television commercials were bought and paid for and owned by the tobacco companies or their advertising agencies. What were the odds that permission would be given to make an anti-smoking documentary?

But, how about the clips of feature films showing major movie stars puffing away? Again, no studio would cooperate in showing how they were pulled into the campaign to turn on an entire nation to a deadly habit like smoking. They might be proud of the film, but they certainly would not be proud of the hand they had in promoting an often-fatal addiction.

Here the trick was to find particularly clear and fine examples and then only use a bare minimum in order to get the idea across. Unlike the commercials, which were generously used, the feature film clips were used very sparingly in Smoke and Mirrors and only to the extent necessary to get the point across.

(Originally published at GoArticles and reprinted with permission from the author, Michael C. Donaldson).