Content Creator Rights: Navigating Fair Use in the Digital Age

What is Fair Use

Fair use is a legal concept that allows a third party to use a copyrighted work without permission from the copyright owner. Section 107 of the Copyright Act of 1986 (17 U.S. Code § 107) states that the use of copyrighted material "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." The examples in the Act are broad and non-exhaustive, opening other areas in which Fair Use can be applied. For example, a parody not listed in the Copyright Act can fit under the broad category between comment and criticism. Fair use is not precisely defined and purposely remains a gray area that requires a case-by-case determination to strike a balance between the rights of the copyright holder and the free dissemination of knowledge and information.

Fair Use Factors

Fair use is an affirmative defense to copyright infringement and not an automatic right. Copyright owners are afforded certain rights for their creative works; any use of those works without the copyright holder's permission violates those rights, which is called copyright infringement. The Copyright Act illuminates four factors to be considered when determining Fair Use. The four factors include (1) the purpose and character of the use; whether such use is commercial or for educational purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use upon the potential market.

How Fair Use is Determined

The doctrine of Fair Use was first articulated in the Folsom v. Marsh case in 1841 and eventually incorporated in the Copyright Act of 1976. Since the first articulation of Fair Use, which dealt with print media, technology has significantly evolved. Platforms such as YouTube, which have provided new avenues for creators to share their content, but have brought copyright infringement and Fair Use to the forefront.

One of the most recent cases addressing Fair Use for content creators is the 2017 case, Hosseinzadeh v. Klein. YouTuber Matt Hosseinzadeh, also known as “MattHossZone,” sued Ethan and Hila Klein, known as “h3h3productions,” for copyright infringement and defamation after the Kleins created reaction videos to Hosseinzadeh’s original YouTube content.  

In finding in favor of the Kleins, the court noted that no single Fair Use factor is greater than the other and to be successful in claiming Fair Use, one does not have to prevail on all factors. The Court heavily favored the Kleins because it fell under criticism and/or comment, which is expressly listed in the Copyright Act.

When weighing the second factor, the Court found in favor of the plaintiff, as Hosseinzadeh’s videos were entirely fictional. The more creative and expressive the copyrighted content is, the less likely Fair Use will be found. The Court found the third factor to be neutral. The Kleins used a substantial amount of the plaintiff’s videos; however, they included divided segments of the plaintiff’s video with their comments and criticism, which transformed the original video into something new. Transformative use takes the original work and converts it by creating new information and new insights, essentially creating something different than the original work. For example, a biographer writing a book about another’s life can be viewed as transformative because of the added value and the new insights that can be gained regarding the subject matter, as opposed to a user who merely makes copies of a book to be handed out at a local book club. The Court further noted that the amount the Kleins used was “reasonable to accomplish the transformative purpose of critical commentary”.

Lastly, the Court found for the defendants in the fourth factor.  Specifically, the Court held that the Kleins’ video did not negatively impact the market or lessen the value for the plaintiff because the nature of the video was so different.  In other words, the critique offered by the Kleins’ video is transformative and could not be considered a market substitute for the plaintiff’s videos. The key takeaway from this case and other Fair Use cases is that the more transformative the use, the more likely Fair Use will be found.

Common Misconceptions and Avoiding Fair Use

Content creators should always be aware of copyright infringement. Content creators often face this issue, sometimes without realizing it. Intent does not matter—ignorance of the law is no excuse.  I often see creators displaying the Fair Use preamble located in 17 U.S.C. § 107 or including disclaimers to avoid infringement. Keep in mind that Fair Use is a defense and not an automatic right; these displays will not avoid copyright infringement as discussed above. Giving credit to the original creator is recommended, but this, too, does not always avoid claims of infringement.

Here are a few more precise ways to avoid infringement:

1) Ask for consent- Written consent is the best way to avoid infringement. Getting consent might not be as easy as it sounds. You want to show there is value in allowing you to use their creative works, which can be a type of cross-promotion by introducing them to an audience that might not have heard of them. 2) Use Original content- using content that you created is the most definitive way to avoid infringement. No one can claim ownership of your work, and now you have a creative work from which you can potentially generate income.

3) Use content that is part of the public domain- creative works in the public domain are free for anyone to use; however, knowing what works are in the public domain is tricky. 4) Use licensed works- sites such as Creative Commons allow you to purchase a license to use otherwise copyrighted material.

Work with an Experienced Copyright Attorney

Navigating Fair Use can be complex, but you don’t have to do it alone. Our firm provides guidance and strategies to help you avoid copyright infringement. We also offer services for registering your creative works.