While browsing through YouTube videos I often find some of my favorite songs mashed up with video clips from movies, animations, and video games. Inevitably these videos are removed after receiving a take-down notice from Google for violating the terms of service. Of course, these mash-ups are blatantly infringing on the copyright holders works and should be taken down. One thing I notice on these mash-ups is a copyright disclaimer saying the presentation of the video is fair use and the user is claiming no rights in the intellectual property and does not own any of the copyrights associated with the works. While that is very kind of them to admit, it does not somehow insulate them from a possible infringement action. This brings us to the subject of the day, fair use. This is probably one of the murkiest and most litigated areas of the act so I will attempt to clear up the basic idea.
Fair use is nested in § 107 of the Copyright Act which outlines the general idea of fair use. It states fair use includes reproduction in copies or phonorecords or by any other means…for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. The act clearly states that if you are using a copyrighted work for the aforementioned purposes it “is not an infringement of a copyright”. This is subject to several limitations, which the act takes into consideration to determine if normally infringing activity is “fair use”. These factors are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
As with any law, the statutory language is quite broad and open to interpretation. The courts have held that a fair use analysis must be done on a case by case basis and does cannot be simplified with a set of bright-line rules. In Campbell vs. Acuff-Rose Music, Inc. the court reasoned the fair use doctrine “permits [and requires] courts to avoid a rigid application of the copyright statutes when, on occasion, it would stifle the very creativity that the law is designed to foster.” This case provides the best analysis for the fair use doctrine because it allows for uses beyond the rigid statutory language and articulates the benefits for creating a transformative work which promotes the central purpose of the copyright act; promoting science and the useful arts. This allowed for the creation of a parody based on a previous work that the court determined was a non-infringing use, even though the strict reading of the statutes seems to show a parody wouldn’t really be a “fair use” because it is not criticism, comment, news reporting or any other factor listed in § 107. Nonetheless we have works such as Weird Al, Space Balls, and are modern transformative works such as “Girl Talk”.
So what we know from cases is the rules are not rigidly applied and allow room for some creativity and transformative works based on § 107 factors. If you are working on something and wondering if it is fair use consider the factors in § 107 and the court’s interpretation of Campbell vs Acuff-Rose Music. If you are using the work for the purposes enumerated within the act you will probably be fine, however, if you are using the work to create a mash-up of your favorite movie clips to your favorite song; you’re probably going to get a take-down notice from Google.
As with any post this is not legal advice and if you have a copyright issue please contact an attorney.
 Campbell vs. Acuff-Rose Music, 510 U.S. 569 (1994)
 Id at 577