How Comedians and YouTube Stars Get Around Copyright Laws

by | Jul 8, 2017 | COPYRIGHT LAW, INTELLECTUAL PROPERTY | 0 comments

Ever wonder how comedians and YouTube stars get away with replicating copyrighted works? From famous performers like “Weird Al” Yankovic, Dave Chappelle, and the actors of Saturday Night Live to  independent personalities on YouTube, the Fair Use Doctrine offers certain authors special protection against claims of copyright infringement.

United States copyright law aims to promote the progress of Art and Science by securing authors’ exclusive rights to their creations and discoveries.[1]  The system is meant to stimulate creativity through economic reward while also allowing others to build on the ideas and information conveyed.[2] To protect their works, large production companies primarily rely on licensing agreements to limit the use of any shared materials.

Many comedians and freelancers, however, employ a Fair Use Defense in response to any claims of copyright infringement.  Fair Use allows copyrighted material to be used without permission, under certain circumstances. As an affirmative defense, the defendant (claimed infringer) has the burden of proving that the use was fair.

What is “Fair Use?”

Fair Use is codified in Section 107 of the U.S. Copyright Act, which provides that “the fair use of a copyrighted work… for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.”[3] The Fair Use Doctrine balances the competing interests of the original author, who has an economic interest in the work and seeks to protect it against appropriation; and society, which favors free access to intellectual creations.

Section 107 of the Copyright Act provides only general guidance about the uses commonly found to be fair uses. The uses listed (criticism, comment, news reporting, teaching, scholarship, and research) are illustrative examples only and are not determinative, allowing the courts to avoid the rigid application of copyright law that would lead to stifled creativity. In essence, Fair Use can be regarded as a “privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.”[4] As such, each case must be decided on the merits of its own facts.

How is a “Fair” Use Determined?

Of primary concern is whether the new author’s work supersedes the use of the original work. The Fair Use doctrine facilitates the creation of additional works deemed to be “transformative.” Works which do not add anything new or merely substitute the original work’s market are generally not deemed transformative.

In determining whether a particular use is “fair,” the courts analyze and balance four interrelated factors:

  • The purpose and character of the Defendant’s use[5]
  • The nature of the Plaintiff’s copyrighted work[6]
  • The amount and substantiality of the portion used[7]
  • The effect of the Defendant’s use on the market or value of the Plaintiff’s copyrighted work[8]

None of these factors are exclusive and courts must balance each independently of the rest.

A Special Case for Parodies

Courts have recognized a special need to protect parodies, which often represent controversial points of view. As a form of comment or criticism, parodies provide social benefit by shedding light on earlier works and, in the process, creating a new work. Parodies however, must be distinguished from satire, which merely uses the plaintiff’s work as a vehicle for more generalized social commentary. A satire may still obtain Fair Use protection, but it does not receive the special protections afforded to parodies.

In the case of Parodies, the Fair Use analysis is modified as follows:[9]

  • The purpose and character of the Defendant’s use (any commercial nature is ignored)
  • The nature of the plaintiff’s copyrighted work (negated because always target creative works)
  • The amount and substantiality of the portion used (weighed less heavily)
  • The effect of the Defendant’s use on the market or value of the Plaintiff’s copyrighted work (negated because parodies serve a different market and do not affect demand)

Therefore, once a work is determined to be a parody, it is very difficult to prove an infringement of the original copyright.

Limitations on Fair Use

It is important to remember that Fair Use is determined on a case-by-case basis. There is no magic formula or word limit to determine when a particular use will be deemed “Fair.” While copyright laws do offer guidance, verdicts and opinions can vary by jurisdiction and even from judge to judge. The outcome of any particular case will depend entirely on the specific facts of that case. Unfortunately, the Copyright office will not consult with the public on questions about Fair Use. Therefore, it is important to seek competent legal representation to discuss your individual situation.

[1]U.S. Const. art. I, § 8.

[2] Mazer v. Stein, 347 U.S. 201, 219 (1954).

[3] 17 U.S.C. § 107.

[4] Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 549 (1985).

[5] 17 U.S.C. § 107(1).

[6] 17 U.S.C. § 107(2).

[7] 17 U.S.C. § 107(3).

[8] 17 U.S.C. § 107(4).

[9] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994).

 

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