Copyright Fair Use [60 Second Law Bites]

What’s up everyone, it’s attorney Brian coming at you with another episode of 60 second law bites. The purpose these videos kind of tell you a little bit about the law in 60 seconds and usually goes over but we’ll say 60 seconds of fun. So today’s topic is Copyright Fair Use. Now copyright is a major area of law, it’s a major reason why there are big lawsuits because their statutory damages that allow somebody, the copyright holder, to recover substantial amounts of money in the event there is copyright infringement. It doesn’t have to be big, just one infringement alone can lead to big money. So fair use is a very important area of copyright law. And basically, it’s a balancing act. So there’s no clear definition on like what is and what is not fair use. It really depends on a variety of factors in the situation. So some of those factors include, the first one is the purpose and character of use. If you take a copyrighted video, or copyright piece of art and then you turn around sell, it is very unlikely to be considered fair use because the purpose of what you’re doing is commercial. Now if you use a five second clip of a three hour movie to show and educate, it is more of an educational setting, it is more likely to be considered fair use because the purpose of the use and character use is educational rather than commercial. The other part is the nature of the copyrighted work, that’s another factor. So the first factor is purpose and character of use. The second factor is nature of the copyrighted work. The nature of the copyrighted work, really goes to how creative the work is. If it’s a completely original creation, then there’s more likely to be protections from it being used. If it not as creative, this is one of those factors, it’s kind of small factor, usually the two big factors are purpose and character of using the amount of substantiality of the portion. So the nature of the copyrighted work isn’t really as much of a factor but it really goes to you know, how creative is the work. The third factor is the amount and substantiality of the portion used. Now if you, imagine a billboard that is 25 feet by 35 feet long. And there’s some work on there, that’s copyright, the whole thing is copyright protected, but use a piece that is one foot by one foot, right it’s it’s miniscule portion of it, that factor is more likely to weigh in favor of fair use. Similarly, if you have a movie and you take a five second clip of a movie from a three hour movie, that is more likely to be fair use because the amount of the work you’re using is so small compared to the entirety of the work. And again, the final factor is really the effect of the use upon the market for the copyrighted work. So if what you’re doing has a substantial market effect or cognizable market effect on the copyright holder, you are more likely to be found that your work is not copyright protected. So again, think of a painting or think of a photograph from photographer, if you put that photograph online, and you sell it on merch that that photographer who’s selling merch, then you’re not using for fair use, right? It’s more likely than not that you will not be found in a fair use type of setting. One because the purpose of your use is commercial but then also the effect. Even if you’re selling your T-shirts at a loss and you’re using the assessor, really a nonprofit basis. Say you take a photo, somebody else photo and you put it on a t-shirt, you sell at a loss you’re not making any money. It’s not really commercial on your end, but now the photographer can’t sell the photograph on T shirts and make money because you are undercutting him substantially. So the effect is that you are having a negative effect. It is more likely than not that you will be found not to be fair use notice. Now in this video, right it goes over the broad strokes of fair use. I think the important thing to remember about fair use is the four factors. The purpose and character of use, the nature of the copyrighted work, the amount of substantiality of the portion use of the copyrighted work and the effect of use on the market for copyrighted work. Copyright law is very specific. On a district by district and appeal circuit by appeals circuit basis, right, as much as it is uniform across the US it is not uniform across the US. That is one of the reasons that we have major issues with copyright law. The other issue is that the major IP holders of copyright, or usually movie studios and music studios and they are willing to spend big money to protect themselves and so it’s an area of law that is constantly in flux in every nuance. So the purpose of this video is to write an overview but it is by no means intended a perfect explanation, it is very much a broad overview.

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