Copyright law protects original works of authorship that are fixed in a tangible medium of expression. Poetry, plays, movies, songs and software are examples of created works that can be protected by copyright. The U.S. Constitution grants Congress the power to create copyright law under Article I, § 8, cl. 8, and copyright law in the United States is governed by the Copyright Act of 1976. Like other forms of intellectual property protection—trademarks, patents, trade secrets—copyright protects the creator’s tangible manifestations and expression of ideas by according exclusive legal rights for production and control of those ideas.

A copyright owner has the legal right to restrict the reproduction of her protected work and demand royalties when the copyrighted material is used. However, though copyright protection is comprehensive, it is not absolute. There is a legal doctrine, the fair use defense, that allows for the unlicensed use of an individual’s copyright protected work in certain circumstances, found in § 107 of the Copyright Act.  Fair use permits limited use of copyrighted material for purposes such as criticism, commentary, parody, news reporting, education, scholarship or research. Examples of accepted fair use include reproduction of a portion of a literary work by an English teacher for a class project; a summary of an article by a journalist in a news report; quotations from a film by a critic in a movie review; or a comedy that incorporates some of the parodied material.  Fair use aims to walk the fine line of encouraging the free exchange of ideas for the public benefit while protecting the creative works and interests of the individual copyright holder.

So how is fair use determined? Section 7 of the Copyright Acts requires consideration of four factors: 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work. These four factors are not an end-all. Courts evaluate fair use claims on a case-by-case basis, and outcomes vary according to specific fact patterns.

Determining acceptable or unacceptable fair use is often confusing to the public, and as seemingly illogical as airline ticket price changes. So in April 2015, the U.S. Copyright Office announced the launch of the U.S. Copyright Office Fair Use Index with the goal of making the “principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions, including by category and type of use [e.g., music, internet/digitization, parody],” according to the Copyright.gov website. The Fair Use Index tracks judicial decisions to reveal the types of uses courts have determined to be fair use, or not fair use (Copyright.gov).

One interesting case noted in the Fair Use Index is Dr. Seuss Enterprises, L.P. v. ComicMix LLC No. 16CV2779-JLS (BGS) (S.D. Cal. Dec. 7, 2017). Plaintiff Dr. Seuss Enterprises is the owner of several copyright registrations for works by the late Theodor S. Geisel (Dr. Seuss), including the book, Oh, the Places You’ll Go! Defendants Glenn Hauman and David Jerrold Friedman (a/k/a  J. David Gerrold and Ty Templeton) created an allegedly infringing book called Oh, the Places You’ll Boldly Go!  that combines various aspects of Dr. Seuss’s works with elements from Star Trek. In a Kickstarter campaign to fund their work, the Defendants included a disclaimer stating their work is a parody that falls within the boundaries of fair use, citing § 107 of the Copyright Act of 1976. Dr. Seuss Enterprises filed suit, claiming that the work misappropriates key elements from Oh, the Places You’ll Go!  and four other Dr. Seuss books. Defendants moved to dismiss the claim, arguing fair use doctrine. The Court denied Defendants’ motion as to the copyright infringement claim, holding that it could not find that the Defendants’ use was fair as a matter of law, and granted Plaintiff leave to amend its complaint. Thereafter, the Plaintiff filed an amended complaint, and Defendants again moved to dismiss the claim under fair use. In the end, the Court concluded that there is potential harm to the market for the Plaintiff’s derivative works, and held that the Defendants’ fair use defense failed as a matter of law.

More recently, according to the Fair Use Index, in Erika Peterman v. Republican National Committee No. 17-66-M-DLC (D. Mont. March 19, 2018), Plaintiff Erika Peterman was hired by the Montana Democratic Party to take photographs of Democratic candidate Rob Quist at an event. She took the photographs and gave limited license to the Montana Democratic Party to use the photographs. Peterman later learned the Republican National Committee sent out a mailing using one of her photographs of Quist that was designed to depict him negatively. Peterman filed a complaint alleging copyright infringement and intentional interference with economic advantage based on RNC’s copying, using, and distributing her photograph. RNC filed a motion to dismiss, alleging its use was fair use. The Court determined that RNC’s use of Peterman’s photograph could not, at the motion to dismiss stage, be found fair.

A thoughtful perusal through the Fair Use Index, which includes cases dating from 1841 to 2018, reveals a comprehensive overview of the oftentimes contentious legal determination of what’s fair and what’s not.