Have you watched an episode of Last Week Tonight with John Oliver lately? Used a search engine to conduct research for a college paper? Watched a streamed version of a Dead and Company show on their current tour? These are just a few of the many examples of how people come into contact with an important part of copyright law called fair use.
Fair use is everywhere. You may not even realize how much you interact with this protected right to free expression, but it comes in the form of everyday activities, such as posting on social media, using search engines, parodying a known work, teaching or doing homework and remixing songs by your favorite artists.
First amendment protections are embodied in fair use which, allows everyone to use existing scientific and cultural material without permission, under certain circumstances. To determine if a particular use is fair use, four factors are applied: 1) the purpose and character of your use, 2) the nature of the work, 3) the amount and substantiality of the portion taken and 4) the effect of the use on the market for the original. What this means is that fair use allows consumers, creators and innovators to have more choice and the public to have greater access to information.
The Re:Create Coalition has launched a series of “day in the life” infographics to help showcase the role fair use plays in our daily lives, especially in this digital age. Our first infographic detailed how attendees at the SXSW festival came into contact with fair use.
Our second infographic profiled how the fan fiction community interacts with fair use, as artists, creators and fans gathered at Comic-Con International in San Diego, CA earlier this month.
As seen in these infographics, fair use is an integral protection for not only creators, innovators, startups and tech companies, but also fans, social media users, and most everyone else. It is a complicated concept, but too frequently the automated, black-and-white processes to protect copyright holders incorrectly target creators and innovators who are actually operating under fair use. For instance, Stephanie Lenz posted a 29-second video of her son dancing to YouTube in 2007; however, Lenz’s video was taken down because a copyrighted Prince song could be heard faintly in the background. The reality is that this “dancing baby” case fell within the fair use parameters, which the United States Court of Appeals for the Ninth Circuit affirmed in 2015.
Not everyone has the time or money to mount a legal defense of fair use. Without a broad interpretation of fair use, we risk losing out on the next great song, remix video, work of art, documentary or even just a funny meme.