As copyright laws shift and move with the swift emergence of technology, it’s important to stay abreast with the knowledge of fair use, content protection, and a new copyright laws currently active to be passed.

When Fair Use Prevails Over Copyright

The concept of fair use is integral to copyright law, acting as a balancing act between the rights of the copyright holder and the public’s freedom of expression and information. Fair use overrides copyright when the use of copyrighted material is limited and transformative for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.

Examples of Fair Use

Parody: A classic example is the Supreme Court case Campbell v. Acuff-Rose Music, Inc., where the rap group 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” was deemed fair use.
Education: Quoting a book in an academic article or classroom setting for illustrative purposes can be considered fair use.
Commentary and Criticism: Using excerpts from a film or novel in a review for the purposes of criticism or commentary often falls under fair use.

Four Factors Courts Consider In Fair Use Copyright Infringement

There are four factors the courts consider in a copyright infringement case:

1. the purpose and character of the use, including whether it’s of a commercial nature or for nonprofit educational purposes
2. the nature of the copyrighted work
3. the amount of the copyrighted work 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.

As you can see, these are not yes/no questions, so it’s up to the courts to determine whether each factor supports or goes against a finding of fair use. Even then, there’s no equation or formula for determining whether a use is fair use. The courts consider each factor and then decide whether, on balance, they point in favor of or against fair use.¹

Countering Claims of Fair Use

Copyright owners can fight fair use claims by demonstrating that the use is not as limited as claimed, or that it fails to meet the criteria of transformation, non-commerciality, and effect on the work’s market potential.

To protect their content, copyright holders can:

• Provide clear licensing agreements that outline permissible uses.
• Monitor the use of their content and issue takedown notices where fair use does not apply.
• Engage in legal battles to challenge the boundaries of fair use when necessary.

Ultimately, the determination of fair use often depends on the specific circumstances and can require legal adjudication to resolve disputes. While fair use provides important leeway for creativity and education, copyright holders have tools at their disposal to protect their rights when necessary.

It’s important to note that licensing agreements typically cannot prohibit fair use outright, as fair use is a legal doctrine that is available regardless of what a license says. However, licensing agreements can clarify the scope of permitted uses and can often include language that aims to limit how the licensed material is used to discourage claims of fair use.

Example Licensing Agreement Clauses

Restrictive Licensing: “The licensee shall not use the copyrighted material in any manner that constitutes fair use as defined by law without obtaining prior written consent from the copyright owner.“

Specific Limitation: “This license permits use of the copyrighted work for personal, non-commercial purposes only. Any use for educational purposes, criticism, commentary, or other uses typically considered ‘fair use’ must be explicitly approved by the copyright owner.“

Commercial Use Prohibition: “The licensee is prohibited from using the copyrighted material in any way that results in commercial gain, which includes but is not limited to, educational materials, commentary, or collections.“²

No Derivative Works: “Licensee may not create any derivative works based on the copyrighted material, even if such derivative works may qualify as fair use under copyright law.“

Attribution and Integrity: “The licensee must maintain the integrity of the copyrighted work and may not use it in a way that is defamatory or that could be considered fair comment or criticism.“

By including such clauses, the license aims to narrow the circumstances under which the material can be used and to ensure that any potential use that could be argued as fair use is instead covered by the licensing terms.

However, it is up to courts, not licensors or licensees, to make a final determination on what constitutes fair use in any given case.

Licensing Agreements

A content creator should post their licensing agreement in multiple, easily accessible locations associated with their work:

On Their Website: The agreement should be clearly visible or linked prominently, often found in the footer, on a dedicated legal page, or within a section for terms and conditions.

Within the Work Itself: For digital content, include a link to the licensing agreement in the metadata or the document properties, or display it within the content, such as the inside cover of an e-book or in the video description for online media.

On Distribution Platforms: If the content is distributed through third-party platforms, ensure the licensing agreement is included or linked in the profile or about sections where the content is available.

Upon Purchase or Download: Provide the licensing agreement at the point of sale or download, ensuring users must agree to it before accessing the content.

By ensuring the licensing agreement is visible and agreed upon before the content is accessed, creators can help protect their rights and clarify the terms of use for their audience.

Example: If you are a YouTube content creator, you can add this disclaimer at the beginning of your video:

“Before utilizing any part of this content for ‘fair use’ please read our licensing agreement here: [ add an easy link to your licensing agreement page ]

Make sure that your licensing agreement announcement is everywhere, in that, those who attempt to violate cannot claim they did not know the content had a licensing agreement.

What Does a Licensing Agreement Look Like?

Please note, this is a simplified example and actual licensing agreements can be far more complex, covering aspects such as indemnification, warranties, limitations of liability, and other legal provisions. It’s always recommended to have a lawyer draft or review any legal agreement to ensure it meets all necessary legal requirements and fully protects the interests of the parties involved.

A licensing agreement is a legal contract between two parties, where the licensor grants the licensee the right to use the licensor’s property under a set of specific conditions. Here’s a simplified example:

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Sample Licensing Agreement

This Licensing Agreement (“Agreement”) is made effective as of [Date], by and between Licensor Name and Licensee Name.

Grant of License: Licensor owns [Description of Work]. Licensor hereby grants Licensee a non-exclusive, non-transferable, revocable license to use [Description of Work] for the purpose of [Purpose of Use], subject to the terms and conditions of this Agreement.

Terms of Use:

Permitted Uses: Licensee may use the Work for [Permitted Uses].
Prohibited Uses: Licensee shall not [Prohibited Uses].
Attribution: Licensee must provide appropriate credit to Licensor.
Alterations: Any alterations or derivative works must receive Licensor’s prior written consent.

Financial Terms:

Royalties: Licensee agrees to pay Licensor a royalty of [Royalty Rate].
Payment Schedule: Royalties will be paid on a [Payment Frequency] basis.
Term and Termination:
This Agreement shall commence on the Effective Date and remain in effect until [Expiration Date/Termination Conditions].

Miscellaneous:

Governing Law: This Agreement shall be governed by the laws of [Jurisdiction].
Entire Agreement: This document represents the entire agreement between the parties.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

[Licensor’s Signature & Date]
[Licensee’s Signature & Date]

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This is a general, example agreement, and it must be reiterated that it’s good to consult legal advice from a copyright attorney if you have complex product and content.

Have Content Creators Won In Court Against Fair Use?

Here are some notable examples where copyright owners engaged in legal battles over fair use claims and won:

Harper & Row v. Nation Enterprises (1985)

The Nation magazine published excerpts from former President Gerald Ford’s unpublished memoirs before they were serialized in another magazine, which was found to infringe upon Ford’s serialization rights​​.

Salinger v. Random House (1987):

A biographer paraphrased large portions of unpublished letters by author J.D. Salinger. The court ruled against fair use because the letters were unpublished and central to the biography​​.

Love v. Kwitny (1989):

An author copied over half of an unpublished manuscript alleging involvement in the Iranian government’s overthrow. The extensive copying of unpublished material was ruled against fair use​​.

Twin Peaks v. Publications Int’l, Ltd. (1993):

A book that included substantial content from the TV show “Twin Peaks” adversely affected the market for authorized derivative works, leading to a ruling against fair use​​.

Castle Rock Entertainment, Inc. v. Carol Publ. Group (1998):

A trivia book about “Seinfeld” used substantial dialogue from the show, infringing on the copyright holder’s rights to create derivative works, which was not protected under fair use​​.

These cases highlight that fair use defenses can fail, especially when the use is extensive, not transformative, and impacts the market value of the original work.³

ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC. v. GOLDSMITH ET AL. (2022)⁴

303 CREATIVE LLC ET AL. v. ELENIS ET AL, 2023⁵

Protecting Lawful Streaming Act (PLSA)

As of December 27, 2020, the Protecting Lawful Streaming Act (PLSA) was signed into law, which aimed to close a significant loophole that had been problematic for content creators and copyright owners. This law targeted large-scale commercial piracy operations that illegally streamed copyrighted works. It did so by harmonizing criminal penalties for violations of public performance rights associated with digital streaming with those for violations of reproduction and distribution rights. The law sought to provide an effective tool for prosecutors to deter criminal activity and better protect the rights of creators and copyright owners against illegal streaming activities​​.

For a more comprehensive understanding of current laws and their enforcement, it would be advisable to consult legal professionals or look into the latest legal literature and government publications.

The Copyright Clause Restoration Act of 2023

The Copyright Clause Restoration Act of 2023 has been introduced, which aims to change the duration of copyright terms rather than directly address fair use​​. It’s essential to keep up-to-date with current legislation, as new laws and amendments can have significant implications for content creators and their rights.

The Copyright Clause Restoration Act of 2023 proposes to reduce the current copyright term to 28 years, with the possibility of a 28-year extension, for a maximum of 56 years. This is a significant change from the present term of life plus 70 years for individual authors, or 95 or 120 years for corporate “works for hire” as set by the Copyright Term Extension Act of 1998. The bill aims to revert to the original term set by the Copyright Act of 1909, potentially impacting how long works remain copyrighted before entering the public domain.

The evaluation of whether the Copyright Clause Restoration Act of 2023 is “good” depends on one’s perspective on copyright law and its implications for society, culture, and the economy. Proponents argue it could enhance public access to creative works and stimulate innovation and creativity by allowing works to enter the public domain sooner. Critics, however, might contend that it could undermine the economic incentives for creators by shortening the period during which they can exclusively capitalize on their creations. The act’s impact would vary for different stakeholders, including authors, publishers, and the general public. To form a comprehensive opinion, one should consider both the arguments for and against the act and how it aligns with personal or societal values regarding copyright protection and public domain expansion

Creators concerned about the potential effects of the Copyright Clause Restoration Act of 2023 can protect themselves by:

• Staying Informed: Keep abreast of the legislation’s progress and understand its implications.
• Voicing Concerns: Engage with legislators to express any concerns about the act.
• Utilizing Other IP Protections: Explore alternative intellectual property protections, such as trademarks.
• Creating New Works: Generate new content that will have copyright protection under the current laws.
• Consulting Legal Counsel: Seek advice from intellectual property lawyers to understand the potential impact on individual works and possible protective measures.

In the face of evolving legislation like the Copyright Clause Restoration Act of 2023, content creators might feel uncertain about the future of their intellectual property rights. However, remember that with change comes opportunity. Creators are resourceful and adaptable—qualities that have always been essential to success in the arts. By staying informed, engaging in advocacy, and exploring all avenues of protection, you can continue to thrive. Embrace the challenge as a chance to innovate and to find new ways to connect with your audience. Your creativity has value, and no matter the legal landscape, there will always be a demand for original, compelling content. Keep creating, keep inspiring, and trust in your ability to navigate the future, whatever it may bring.

(DMCA Wizard is not affiliated with JustAnswer)

footnotes:

1. nolo.com/legal-encyclopedia/fair-use-the-four-factors.html ↩︎
2. This would include YouTube channels who accept payment through superchats, as this is an avenue of income. ↩︎
3. https://fairuse.stanford.edu/overview/fair-use/cases) ↩︎
4. supremecourt.gov/opinions/22pdf/21-869_87ad.pdf ↩︎
5. supremecourt.gov/opinions/22pdf/21-476_c185.pdf ↩︎

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