Copyright laws work to find a balance between encouraging authors to create and share their work, and ensuring members of the public have access to the work. The first interest is served by granting exclusive rights to the author; the latter, through exceptions and limitations to the exclusive rights. The Fair Use doctrine is one of these exceptions. Section 107 of the Copyright Act provides “fair use of a copyright work . . . is not an infringement of copyright.” Courts employ a four factor test that considers 1) the purpose and character of the use (commercial, educational, etc) 2) the nature of the copyrighted work 3) the amount and substantiality of the portion used in relation to the copyright work as a whole; and 4) the effect of the use upon potential market value for or value of the work. As case law and congressional intent have shaped the scope of the fair use doctrine, the rise of social media has added a new layer of complication. Authors who share their work and disseminate it through the internet have the ability to reach hundreds of thousands of people in a matter of seconds. Tracking down all the recipients, and determining whether or not their use of the work is an infringement, is no simple task. Recent case law suggests the fair use doctrine will continue to be a viable defense to those using the power of social media; authors may continue to see additional exceptions and limitations placed on their exclusive rights to their work.
On October 16, 2015, the closely-followed case of Authors Guild v. Google, Inc reached a final decision. The Plaintiffs, authors of published books under copyright, sued Google for copyright infringement, stemming from Google’s activities of making digital copies of tens of millions of books for an online library project. These books could be easily searched by the public free of charge, and would allow a user to view snippets of the books where their search terms appeared. The Court reviewed the four factors of the fair use doctrine, and ultimately affirmed the lower court’s ruling that the activity did not violate copyright law.
The first factor required the Court to consider the “purpose and character of the secondary use.” The Court looked to the analysis in Campbell v. Acuff-Rose Music, and determined Google’s activities added something new to the work, and involved a highly transformative purpose; noting the snippet view option added important value to the transformative search function. Factors three and four weighed in Google’s favor as well; although Google makes an unauthorized digital copy of books in their entirety, it does not make those digital copies completely available to the public, and the Court noted, “it would be a rare case in which the searcher’s interest in the protected aspect of the author’s work would be satisfied by what is available from snippet view.”
Google’s project has arguable added to the value of these books, by making them more available to the public, and by allowing the public to conduct research across these materials to identify authority to cite in their own works. The value of the online library is recognizable, but critics are likely to assume fair use would not be a safeguard for a less “education driven” project. If those critics were to look at another recent case falling under the fair use doctrine, they might rethink that assumption.
In the case of Equals-Three, LLC v. Jukin Media, Inc an online humor program’s use of “viral videos” with commentary and other embellishments was held to be “highly transformative” and worthy of fair use protection.
The Defendant, Jukin Media, is a digital media company that holds a library of user generated internet video clips to license on the clip-creators’ behalf. Jukin employs a team of people that constantly monitor the internet for potentially “viral videos” (i.e. videos likely to become immensely popular); these videos are then uploaded to YouTube and over content-focused websites. Plaintiff, Equals Three, produces short clip videos where the host discusses part of a viral clip, and then adds commentary and criticisms; hilarity ensues. Equals Three argued their episodes constituted transformative uses of the works, because they are parodies; works that use some elements of a prior author’s composition to create a new one. The Court struggled with concluding whether or not Equals Three videos were parodies, but ultimately held jokes, narration, graphics, editing and other elements of the episodes added something new to Jukin’s videos and constituted a transformative use. On the remaining factors, the Court had further difficulty determining the extent to which Jukin’s “point and shoot” videos were “creative”, and found market harm caused by effective criticism that suppresses demand is not cognizable.
The Fair Use Doctrine has been referred to as “the most troublesome in the whole law of copyright” because it both permits and requires courts “to avoid rigid application of the copyright statutes when, on occasion, it would stifle the very creativity which that law is designed to foster.” Current developments in the field involving this doctrine, match those of the past. It is still nearly impossible to predict when fair-use will provide exceptions, and when it will stand by an author to protect exclusive rights.
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