Is it Fair Use? I Found it on the Internet, Ma! Can I Keep It?

Is Ignorance Relevant to Fair Use?

It’s time once again for Is It Fair Use?, the mind-bending, pulse-racing game that’s sweeping the nation.¹Since 2011! By our estimates, if the game had started sweeping the nation in Miami, it will have spread as far as Hialeah by now! Today, we look at what happens when you find a photograph “on the Internet,” use it for your film festival, but quickly take it down the photographer’s attorney sends you a nastygram.

The Four Fair Use Factors

You know what? This case presents a great opportunity to re-state the four fair-use factors and some of their major sub-factors:
Factor One: “The purpose and character of the use.” Why and how are you using the underlying (“copyrighted”) work? This factor, together with the fourth factor, is one of the major factors, getting more attention and carrying more weight than the second and third factors. Naturally, it has several sub-factors:

• Transformative Use: In 1990, concerned that fair-use decisions were becoming too unpredictable, Judge Leval of the Second Circuit tried very hard to distill Factor One into a single concept: whether the use was transformative. He would ask whether the new work “supersedes” or “supplants” the underlying work, or whether it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” In 1994, the Supreme Court more or less adopted this concept, and the rest is history! Very confusing, unhelpful history. You don’t need to be a cynic to immediately see that “transformative use” would become yet another vague concept that would contribute to the unpredictability of fair-use determinations. For example, does simply changing the underlying work’s context transformative? Worse, courts tend to view transformative use as an all-or-nothing affair, and a powerful one at that.
• Parody is a sub-set of transformative use, yet it seems to be a special case. A finding of parody is truly a powerful factor in favor of fair use, often overwhelming (or suborning) the other factors. But there’s a catch. It’s only parody if the new work comments on the underlying work. It’s not parody if you just use the underlying work—say, Dr. Suess’ One Fish, Two Fish, Red Fish, Blue Fish—to comment on something else, like criminal justice..
• Commercial Use is right there in the statute: the more commercial, the less fair. As with everything else, there’s a substantial amount of grey area, particularly where non-profits are concerned and where the commercial benefit is indirect.
• Bad Faith: Not all courts recognize “bad faith” as relevant to the fair use analysis. The Supreme Court itself is undecided.²My own view is that the infringer’s state of mind is never relevant, but the infringer’s bad conduct—e.g., stealing a manuscript—can be. One thing is for certain: this sub-factor (if it exists at all) never helps the accused party, i.e., “good faith” (empty head, pure heart) is never relevant.

Factor Two: “The nature of the copyrighted work.” This factor recognizes that, although copyright protects works that we wouldn’t always recognize as creative (or “expressive”), some works stand closer to copyright’s heart than others. Simplified: the more expressive the work, the less fair the use. This factor has a significant sub-factor: unpublished works, which are also less likely to be fairly used.³The extra protection extended to unpublished works is an echo of an older law: the right to first publication, which was grounded in state common law. The Copyright Act of 1976 got rid of this law, but it lives on, somewhat diminished, in the fair use analysis. Factor two is regarded as a minor factor, with some courts ignoring it altogether.
Factor Three: “The amount and substantiality of the portion used in relation to the copyrighted work as a whole.” It’s a mouthful, but it’s easy to understand. The more you take, the less fair the taking. The more important what you took was to the underlying work (not your own work!), the less fair the taking. This is also regarded as a minor factor. Courts sometimes think of this factor as being relative to the (transformative) purpose of the taking, i.e., they look at whether you took more than you needed to.⁴In my own view, this is wrong.
Factor Four: “The effect of the use upon the potential market for or value of the copyrighted work.” This is the best, and the worst, factor. It gets to the heart of copyright’s purpose: to encourage expression by giving copyright owners the exclusive right to exploit their works. But the analysis is hardly ever easy or consistent. How do you identify “potential” markets? How do you measure “potential” value? What about licensing? What if the infringer opened up a market the copyright owners never thought of? You’d think this factor would all but require expert testimony, but you hardly ever see it. Courts usually just take a common-sense stab at the issue, but since economics is often counter-intuitive, that’s not always a good thing, especially when the reasoning gets circular. This is regarded as major factor.⁵And for a while, it was regarded as THE factor, but no longer.

Weighing the Factors

In theory, none of these factors is determinative. Indeed, in theory, courts aren’t even limited to these factors (though they rarely go beyond them⁶Preferring to shoehorn new factors into already-existing factors.). Court are supposed take every fair-use case on its own terms, and they are to weigh each factor according to the particular circumstances of the case. In theory, a strong showing in one factor could overwhelm all the other factors.
In practice, courts are reluctant to do any weighing at all. Once they’ve decided the fair use question, they tend to make all of the factors weigh in favor of—or, at least be neutral to—their decision.⁷As Ron Coleman put it (discussing this case), “Judges love to run the table.” This often leads to factors being twisted up, which leads to uncertainty for how to apply that factor, which leads to greater uncertainty.
Uncertainty in fair use is inevitable. There are too many kinds of works and to many kinds of uses to come up with any set of rules that would allow for consistency. See, for example, the failure of Judge Leval’s “transformative use.” We have no choice but for courts to make ad hoc decisions based on the circumstances and arguments presented to them. Instead, we should strive for honesty and transparency. Acknowledge that some fair uses cases are close and difficult. Acknowledge that balancing and weighing is an important part of the analysis. Acknowledge the value judgments implicit in the balancing and weighing process, and be prepared to have other courts disagree.

The Case: The Perils of Finding Stuff on the Internet

The defendant in the case organizes an annual film festival. In order to attract attendees, the defendant’s website provides information about the surrounding neighborhoods, such as lodging, transportation and attractions. The defendant’s owner found a great photograph of one of those neighborhoods. It didn’t have any copyright information on it, so he assumed that it was OK to use. By cropping it strategically (and using about half of it), the defendant was able to use the photograph as a kind of map, showing restaurants and points of interest.
The plaintiff is a professional photographer. He took the picture that defendant’s owner found on the internet. He offered to sell licenses to and copies of the photograph. He succeeded only six times, four of which took place before the defendant started using the photograph, but eventually he gave up trying to monetize it.

When plaintiff found out about the defendant’s use of the photograph, he directed his lawyer to demand that it be removed. Defendant complied immediately. The plaintiff sued anyway.

So, what do you think? Fair use? Click here for the answer.