Fair Use Week 2023 (10th Anniversary): Day One With Guest Expert Kenneth D. Crews

I am delighted to kick off the 10th Anniversary of Fair Use Week with a guest post by expert colleague and long-time friend to Fair Use Week, the international copyright authority Kenneth D. Crews. Join him in an exploration of the “many breeds of fair use”  -Kyle K. Courtney


The Many Breeds of Fair Use

Kenneth D. Crews

Surely everyone reading this post has grappled with the uncertainty of fair use.  You know the feeling – finding only a blurred landscape when you just want focused details.  It is time to confront the pesky truth we too often avoid fair use is a beast of many breeds.  You cannot see fair use clearly because many disparate versions fill the scene simultaneously.  You might be hoping to spot one confident creature standing firmly on four legs, when fair use is actually a busy menagerie of friendly and wild species.

Deciding fair use cases begins with those sturdy four factors in the statute.  I have had the privilege through more than three decades to work with the factors from various perspectives and as applied to diverse needs and circumstances.  I have counseled authors and publishers in quest of the border between infringement and permission.  I have advised innovators scraping content from the internet.  I have evaluated music clips in video productions.  I have guided parties using copyrighted materials in the heat of a tense election campaign.  I have given green lights and cautionary guidance, and I have needed to gracefully break the news when my evaluation may not be what someone is hoping to hear.  The fair use analysis is never the same, producing a diversity of forms.

Breed #1: The Two Parties

The fundamental variety of fair use reflects the two parties confronting one another: the copyright owner and the user.  Even in cases that seem to be about the similar facts, these leading parties bring their own experiences, values, and priorities.  An advocate of fair use may be building a business or trying to write a better history book.  The critic of fair use may be trying to optimize revenue or seek to protect private documents or retain control of how or when they are used.  Either party may be driven by strong philosophical views on the level of protection and use that copyright law ought to support.  As a result, each analysis and each conclusion can be distinct – even when the facts look like the same beast.

These two leading parties usually absorb most of the attention.  Indeed, the four factors are fundamentally about those two parties.  The user’s purpose is at the center of the first factor, and the user’s decisions and actions shape the third factor.  The copyright owner’s economic interests are the salient feature of the fourth factor, and the author or copyright owner is usually the party that defines the nature of the work in the second factor.  This two-party breed is as diverse as we can imagine the different facts, but this breed is also the version that is most likely to be played out in a court of law.

Breed #2: Community Interest

The two leading parties may well give birth to a flock of fair use offspring, but sometimes it takes a whole barnyard to raise then right.  To speak of just two parties is to overly simplify a complex matter and to miss the potential nuance of the law’s application.  Most important, many fair use decisions have immediate and profound consequences for the wider community, far beyond the interests of just two parties.  This is the “community breed.”

Different works and different situations affect the public in different ways.  When HathiTrust is allowed to build a vast collection of digitized books, the public benefits from the new way of identifying and accessing books.  When an author can use pictures and quotations in a biography, the public benefits from the new publication with the added content that adds depth and character.

Fair use also has its limits, because enable authors to protect their creative work can also foster benefits far beyond the owner and user who are engaged in the fair use debate at hand.  No factor in the statute is explicitly or primarily about the public or anybody else, but courts do take the public interest under consideration as they apply the factors.  Infusing the evaluation with the public interest can change the genetics and the legal outcome.


Breed #3: The Good Faith Determination

The law of fair use may center on the for factors, but the U.S. Copyright Act includes a protection for the benefit of educational institutions, libraries, and archives that can eliminate statutory damages – one of the most significant financial infringement risks – if the court determines that the user believed, and had reasonable grounds to believe, that the use was within fair use.  This is yet another breed of fair use because it is an evaluation that gains legal recognition and offers significant protection for the user.  In most any application, the case will be based on the four factors, but the law adds new variables that establish the good faith effort.  This application of the law applies explicitly when the use is not fair, but nevertheless if offers such extensive protection that it may well bring any copyright clash to a quick resolution.


Breed #4: The Worthy Risk

Any decision about fair use has some element of risk.  The previous Breed #3 that is based on the user’s belief about fair use is necessarily built on calculation, evaluation, and the vagaries of the user’s subjective state of mind.  This Breed #4 dares to explore opportunities on a distant range with little traditional guidance.  It is exercised when needs and circumstances are innovative and untested by law, or where existing legal precedent offers little relevant support and clarification.  This is the breed of fair use that occurs in the laboratories of creativity, in the debates and decisions of corporate boards, and in the privileged explorations with legal counsel.

This breed may not itself have the force of law, but every court ruling begins with someone choosing to venture into the unknown.  Picture the boardroom years ago as Google executives decided to build a collection of millions of digitized books.  Imagine the lively conversations when rap artists and their production company chose to release a provocative parody of the “Pretty Woman” song, knowing that the copyright owner has already objected.  Consider just the common questions about fair use and online education, where the legal questions remain unresolved, but the need to expand programming is intense.

This breed is no less legally grounded than the others.  The analysis still begins with the best available understanding of the four factors in the statute, and that is exactly where any good fair use decision is based.  But this breed must compensate for the lack of laws with deeper consideration of additional variables.  This fair use determination relies heavily on considering closely and sizing up those two leading parties: the owner and the user.

This breed of fair use complements unknowns in the law with evaluations of needs, risks, and practical circumstances.  Consider the user’s perspective:  Is fair use critical to my project?  Is my planned use extensive or only incidental?  Can my use of the copyrighted content be taken down, removed, or replaced easily if necessary?  Does my use extend into other countries where fair use may not exist?  Think as well about the copyright owner:  Is the owner positioned to bring expensive legal action?  Are the copyrighted works central to the owner’s business and interests?  Is a license available to meet the needs?  Does the owner have a record of aggressive protection?  Are the copyrights registered?  Sometimes these variables will make us cautious; at other times, we may well conclude that the risks are modest and worthy of taking on.

The Roundup

Have no doubt, fair use is essential for the effective operation of the copyright act.  Without fair use and other exceptions, copyright would be an oppressive force, inhibiting the growth of knowledge and the expansion of creativity.  Even with fair use, copyright law is an open range for debating reasonable perspectives and the meaning of the four factors in the fair use statute.  Looking out on that range, we can understand how the many breeds of fair use are not unsettling and confusing.  They are instead an essential way of understanding the role and structure of the law in order to serve widely ranging needs and conditions.  You are not seeing blurred law, but instead you are recognizing the flock of fair use fauna sharing the diverse ecosystem of copyright law.

Kenneth D. Crews is an author and attorney at Gipson Hoffman & Pancione in Los Angeles, specializing in copyright law.  He founded the copyright offices at Indiana University and Columbia University, and he is the author of Copyright Law for Librarians and Educators (4th edition, 2020).