It’s Time to Play Fair Use Feud!

Welcome to Fair Use Feud – the game show about whether the use of a copyrighted work is fair use or infringement! We’re going to present some real-life examples. It’s up to YOU to decide if it’s fair use or infringement. Then we’ll tell you the way the courts actually resolved the cases before them, and see how you think they did. “Fair use,” for any newbies out there, is a legal defense in copyright law that permits people to make otherwise infringing uses of copyrighted works they do not own for certain purposes benefitting the public good – such as to analyze, critique, and even parody those works. Fair Use also allows for the reinvention of copyrighted works into something different – what courts refer to as “transformative” uses. The use must alter the original work “with new expression, meaning or message” in ways that don’t unfairly interfere with the market for the original or the copyright owner’s legitimate interest in licensing derivative uses. People who just want an excuse – such as pirates – to justify the appropriation of content they do not own will often insist: “Fair use! Fair use!” It is an enticing strategy because fair use is malleable – and each case must be considered based on the unique facts of the given circumstance. In examining fair use, courts consider four factors, ranging from the purpose and character of the use to the effect it has on the market for the original work being used. The idea is to evaluate whether someone is using the copyrighted content in a way that is a net positive for society, or unfairly benefitting from the work without compensating the creator, in a way that harms the creator’s ability to earn additional compensation in the future. Unfortunately, there has been a troubling trend toward overly expansive interpretations of fair use. On platforms such as YouTube, many users feel entitled to upload virtually anything without permission so long as they cry “Fair use!” somewhere along the way. YouTube, and its parent Google, have done little to discourage this line of thought. To be, well, “fair,” fair use can be very tricky to determine, but that doesn’t mean we shouldn’t try. Here are some real-life fair uses decisions to help you understand the conundrum a bit better. Read each summary, then click your selection – fair use or infringement? – to reveal what the courts decided. Tread carefully – there is a reason why the U.S. Supreme Court once referred to the concept of fair use as “the most troublesome in the whole law of copyright.” With that in mind, let’s… play… Fair Use Feud!