by Tony Berman
Researched & edited by Shana Dines
Since the U.S. District Court for the Southern District of New York decided against Yoko Ono Lennon earlier this month in a well-publicized copyright infringement case, many filmmakers are further confused about where the lines are drawn around the concept of “Fair Use”.
Ono Lennon was denied an injunction against the makers of the documentary film "Expelled," about Intelligent Design theory, for using a 15-second excerpt from Lennon's renowned song "Imagine" without her permission.
However, the majority of the public commentary on this case is giving a false impression of what the Fair Use Doctrine truly entails.
The most quoted line from the case is from Judge Stein who wrote, "[t]he fair use of a work for the purposes of criticism and commentary is not an infringement of copyright." This is a simple overview of the Fair Use Doctrine, but does not even begin to address what is required for a finding of Fair Use.
As noted in several earlier postings on MELON, the Fair Use Doctrine provides an exception to the Copyright Act and allows a work to be used, but only in certain circumstances. There is no absolute answer to what is or is not considered a fair use of copyrighted material. A judge must always make the determination by considering the four factors described in the fair use statute, 17 U.S.C. §107.
The factors to be considered are:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work. The court will also consider the ultimate goal of fair use, which is to promote the progress of science and useful arts.
1. Purpose and Character
The first factor a judge looks at is the purpose and character of the use of the copyrighted work. The main determination here is not whether the main point for the use was to profit, but whether the user of the copyrighted material stands to profit from the use.
However, in the realm of documentary films, in particular, the ultimate commercial goals of the filmmakers does not weigh very heavily against fair use when they can prove the film is meant to contribute to the broader pubic interest by stimulating debate on a current issue.
Further, if the party who is using the copyrighted material can make a showing that the use is transformative, rather than exploitative, then fair use is favored. Transformative use means that something new has been added to the purpose or character of the original work by altering its expression, meaning, or message.
Here, the court determined that, even though the filmmakers did not alter the music or lyrics of "Imagine," they changed the purpose of the song by pairing it with visuals that contract the song's message, thus changing its meaning in the context of the film.
Although the documentary film has an ultimately commercial purpose, the transformative use of the excerpt from "Imagine" weighs more heavily in favor of fair use.
2. Nature of the Work
The second factor of the fair use doctrine is the nature of the copyrighted work. The law favors more protection for creative fictional works than factual or informational material. Whether the work is published is also considered, particularly limiting fair use of unpublished works. In Ono Lennon's case, the judge found that the widespread publication of the song outweighs that it is a creative work.
3. Amount and Substantiality
The third factor is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. The more of the copyrighted work that is used, the less favorable is a finding of fair use. Both quantitative and qualitative components are considered in this analysis. Here, the court first recognized that the excerpt used was only 15-seconds, as compared to the 3-minute total running time of "Imagine."
Quantitative measurements can be outweighed if the portion of the copyrighted used is the "heart" of the work. In this case, a musicology expert was brought in to explain that the 15-second excerpt of "Imagine" is representative of the whole song, and therefore the "heart" of it, because it included vocal and piano phrases that are repeated throughout the song.
However, in his opinion, the judge cited a well-known case about 2 Live Crew's use of a portion of Roy Orbison's song "Oh, Pretty Woman," where the court found fair use. Despite the repetitive use of the chorus, or "heart" of the song, the court determined that the use was fair because the new song was a parody.
Judge Stein related this reasoning to the present case, saying use that is fair for parody must also be fair for commentary and criticism.
4. Effect on Potential Market
The fourth and final factor of the fair use doctrine is the effect of the use upon the potential market for or value of the copyrighted work. This factor is based on the concern of whether the secondary use usurps the market of the original work, not whether it destroys the market of the original work or its potential derivatives.
This means the court is less likely to find fair use if the same people who would purchase the original work are going to purchase the secondary work instead. However, the court is less favorable to a claim that the secondary use will indirectly harm, but not directly encroach upon the original work's market.
Although Ono Lennon claimed the unauthorized use of "Imagine" would harm the marketplace for licensing the song, she was not able to offer any concrete evidence to prove her contention. The judge decided that without evidence, the factor weighed weakly against fair use.
There is no absolute formula for what will or will not constitute fair use.
There is no type of use that will always be considered fair.
In any case regarding the fair use of a copyrighted work, the judge will analyze and weigh each of these four factors depending on the individual circumstances.
Here, Judge Stein decided that the transformative use of the song outweighed the commercial purpose of the film. The widespread publication of the song outweighs that it is a creative work. The filmmakers' purpose of making a commentary on a current political issue outweighs the amount and substantiality of the excerpt.
Further, Ono Lennon was unable to produce evidence that the use will usurp the market for licensing the song. All of these factors combined to lead the judge to determine that the use of an excerpt of the song "Imagine" in the documentary film "Expelled" is fair use and not an illegal copyright infringement.