Fair Use of Copyrighted Material: 4 Factors to Consider
OCTOBER 28, 2010:
Jen Joly, Director of Marketing and Communications
I recently attended a presentation about legal issues in our online world presented by the Minnesota Chapter of the International Association of Business Communicators (IABC). We heard from Paul Godfread, an attorney with a practice focusing on trademark, copyright, technology and business law.
I want to share one important takeaway that I think affects our clients, as well as a large number of marketers today in the age of content marketing. As more of us publish content, we should be aware of the four key considerations for fair use (a limitation to copyright law that allows the limited use of copyrighted material without permission from the rights holders). When we publish content, the online world makes it easy for us to quote some text from one source, while providing in-depth commentary on someone's video - many things that weren't even possible (or at least not mainstream) as little as five years ago.
Basically, fair use provides an exception to copyright law based on the right to freedom of speech. I could write an entire blog post about what Paul presented on copyright law, but I'll leave it at this: copyright law = protection of 'original expression' (for more read the Wiki entry). According to Wikipedia, examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. This makes sense to me as I always wondered how the witty Jon Stewart and company got away with showing all of those clips from other networks on Comedy Central's The Daily Show. On an interesting related note, earlier this year Viacom (Comedy Central's parent company) said that they would not sue bloggers for posting The Daily Show clips after The Hollywood Reporter ran a story to the contrary.
At the event last week, our speaker, Paul Godfread walked us through the four factors to consider:
The purpose of the use
The nature of the copyrighted work
The amount of work copied
The effect on the market
Godfread explained that there is no one steadfast rule for determining if a use would be deemed fair, but considering these factors should help. According to Godfread, "If you don't have all four factors clearly in your favor, there is at least some doubt as to whether it's a fair use of someone else's work." I thought it was really helpful to walk through the case of Kelly v. Arriba Soft Corporation, which illustrates how each factor would be reviewed in a copyright infringement case. That particular Wiki entry walks through the analysis for each of the four factors and the results leading to the outcome of the case.
The next time you're considering using someone's original expression, give some thought to the four factors and save yourself a headache.
This blog post was originally published on the Priority Blog at priorityresults.com/blog. Priority Integrated Marketing is now BlueSpire Strategic Marketing.