Video Transcript
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hey there welcome back to Innovation Cafe I’m Gary Schuster your friendly neighborhood inventor today we’re diving into a fundamental concept that impacts creators Educators YouTubers pretty much anybody who uses or cares about content the concept of fair use it’s called different things in other countries but we’re going to look at the us because they’re about a quarter of the global gross domestic product so if you’re going to focus on one market the US is a pretty good choice what is fair use fair use it’s a Doctrine in US copyright law that allows you to make limited use of copyrighted material without getting any permission from the rights holder it’s a legal concept and it’s intended to encourage Innovation commentary education and freedom of expression so sounds good so far right it is an exception to copyright because without it it would be really hard to make a lot of the content that we all enjoy things like sampling in music things like
taking a clip of an important video or movie or historical event and using it while it’s called fair use it really tracks the first amendment’s protections fairly well once a work becomes part of the cultural fabric of a country for example Martin Luther King’s I Have a Dream speech locking it up behind a pay wall of copyright would be a pretty s impediment to free speech and open dialogue imagine if you couldn’t even refer to the phrase I have a dream that would be really limiting for freedom of expression now one way to understand fair use is it runs in parallel with the First Amendment and freedom of expression one way to understand fair use is that it’s a way to make sure that copyright protections don’t interfere with our growth as a society they don’t interfere with the creation of new works yes it’s important to encourage people to create Works to have copyrights and
patents and other methods of protecting the products of your brain but we also can’t be too Limited in what we’re allowed to build on if you’re straight up copying somebody else’s work that is not a particularly unique form of expression and you’re not going to have first amendment protection for it because it’s copyrighted now you could rephrase it you could say the same concept in a different way and that would be protected and not infringing that copyright but if you take a work and you modify it then critique it that should fall within the first amendment’s protections now if you take a look at what we’re showing right now you can see that I’m using copyrighted images but I’m putting them together in a new way I am transforming them I’m using them to teach and that’s an acceptable use of copyrighted materials without a license now in a lot of cases you can’t even identify the author of certain copyrighted works sometimes you have to
use it under the fair use Doctrine because a license simply can’t be obtained if you can’t identify who can give you the license first up in determining if it’s fair use and therefore free for you to use the purpose and character of the use ask yourself am I using this for commercial purposes or is it educational and not profit more importantly is it transformative meaning does it add new expression or meaning to the original work now here we can see a pretty good example of transformation from one kind of work to another let me give you another example there was a landmark case where the rapper two Live Crew parody Roy orbison’s song Pretty Woman even though they used a fairly significant part of the original song and it was commercial use the US Supreme Court ruled it was fair use because it was transformative it provided social commentary and added new expression on the other hand if you’re just copying
someone else’s work without adding new meaning and especially if you’re doing it for commercial gain it is much less likely to be considered fair use next the nature of the copyrighted work now this is a factor that considers whether the work is more factual or creative courts are generally more protective of creative unpublished Works than factual published ones and here’s an example consider Harper Row versus Nation Enterprises yes I went to law school so I’m throwing in case names please ignore them nobody other than lawyers really remembers them anyhow the nation magazine published exerpts from Gerald Ford former US president from his unpublished memoirs and included his key reasons for pardoning Richard Nixon the Supreme Court held it was not fair use publishing key excerpts from an unpublished creative work was not permitted now you can see this is a fairly subjective
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analysis in my opinion the reasons one president would pardon another president for crimes in which he was an unindicted co-conspirator is is possibly the most newsworthy thing out there and probably my opinion should have been considered fair use so you can see how both sides of the fair use argument can be put forward and it really does depend on who’s on the court on how they’re feeling that day I mean it’s not as set in stone as we would like to think the judicial process is now third Factor the amount and substantiality of the portion Ed but simply how much are you using are you taking the heart of the work time for an example now this is a case that I remember from law school and Sony Corp versus Universal Studios and what happened was people recorded entire television shows for personal use on a
brand new amazing machine the video cassette recorder and the Supreme Court in a very close call five to four said it was fair use because it didn’t harm the market for the show again four judges said no five judges said yes so this is a fairly subjective thing is it fair use now the fourth big factor unsurprisingly is money the effect of the use on the potential market for the original work if your use could replace the original work or harm as market value it’s less likely to be considered fair use you notice how I’m using terms like less likely probably not again fair use is very subjective and Depends a lot on who you draw as a judge now let’s take a look at an example author’s Guild versus Google in 2015 Google digitized millions of books to make them searchable the Court ruled that this was fair use because the Snippets shown on Google didn’t replace the books but
actually helped readers find them and actually was likely to boost sales which does raise the question why would the author’s Guild Sue Google to stop them from helping Drive Book Sales but that’s a strategic question for the lawyers and the principles behind author’s Guild you consider an analogous but quite different uh case in terms of result the Napster case in 2001 Napster allowed users to share music files of copyrighted music for free now what doesn’t make it into the public discussion of this very often is that there are all kinds of messages between Napster Executives where they acknowledge the important role that piracy was playing in driving their platform in light of that the court said nah that’s not fair use directly impacts music sales harms the market for the original works so I’m exhausted even just thinking about it how can you apply these principles in real life if you’re a YouTuber or a teacher or an artist
you’re going to need some practical tips but take them all with this caveat fair use is very subjective did I say that before yeah I think like eight times it’s still very subjective so here are some things to look for and to try to do first be transformative don’t just copy it add some new expression or meaning add commentary criticism and parody now the Supreme Court in a liable case also carved out parity as a use that’s exempt in many any cases from Lial law so the Supreme Court at least in the past has had a fondness for parody so for example if you were to take this video put a duns cap on it and have a big thing at the bottom explaining what I’m getting wrong that would be pretty good parody and I doubt that I could sue you for copyright infringement I also doubt that I would because I would probably find it funny now use only what’s necessary this is one of those cases where less is more if you use the smallest portion you can
to make your point that’s much more likely to be fair use also consider the type of work factual or published works are safer than unpublished or highly creative ones there is no copyright on facts I can’t copyright the fact that the sky is blue on a sunny day but I can copyright my drawing impressionistically of the sky with clouds and it’s a fundamental difference one is fact and one is an expression another way you think about this and it rides right into the next thing Market impact if you reveal the core pieces of an unpublished work you’re likely to wreck the market for that work when it does get published when in doubt this is the big one seek permission it’s easy for me to say just call up get a license but that is often really hard for one there is no requirement that people register their copyrights so for a lot of things even if you searched every single registered copyright you may still be infringing a copyright that wasn’t
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registered and often you can’t find the owner of the copyright so there’s sometimes where you just can’t get permission to do it now it is particularly important to not violate copyright not just because it’s not the right thing to do but because the statutory penalties are enormous willfully infringing a single work so I am on purpose sharing a cop Cy of a song that is copyrighted and I don’t have a license one time can be as high as $150,000 in statutory penalties now for not willfully copying you get a relative bargain of a minimum $750 penalty and a maximum of $30,000 penalty think about it the penalty for copying a single song could pay for Spotify Premium at around $12 a month for over a thousand years does the recording industry have pretty good sway in Congress I will say that it
does so be very careful if you’re not sure talk to a lawyer a good lawyer is probably going to give you measured advice yeah I think it’s fair use it’s likely fair use why don’t we license it because I’m not sure it’s fair use you’re unlikely to find a lawyer who said boom that’s fair use I mean there are some examples such as a montage of the most important moments in speeches given in Washington DC that includes a 5-second clip of Martin Luther King’s I Have a Dream speech would likely be pretty solidly in the fair use category but again speak to a lawyer because I don’t want to be on the hook if a court disagrees with me so what is fair use to recap it’s a nuance and complex area of law not just nuanced and complex though but highly subjective it’s not clearcut it’s a balancing act of multiple factors understanding these can Empower you to create responsibility
and innovate without infringing on copyrights of others is it safe to do I don’t know man the problem is if you’re not sure if it’s legal to cross the street but the penalty for crossing the street when it’s not legal is the death penalty you’re never going to test that even if you’re 99% sure it’s legal to cross the street and it’s not jaywalking you’re not going to test it and it’s the same thing with these uh ridiculously high statutory penalties very few people are going to push the boundaries of fair use because it’s just terrifying to be stuck with millions of dollars in Damages because you thought that 4 seconds of I have a dream was fair use but it turns out that 3 seconds the court would have considered fair use I really really do want to encourage you to be able to be your maximally creative self and to do that it’s really important that you understand what the rules are so have any questions or topics you want me to explore drop them in the comments below let’s keep a conversation going until then know that
we’re on this planet together remember the thing that differentiates humans from Ai and from animals is creativity it’s the fact that we look out for each other so let’s do that let’s be kind to each other let’s invent ways to make each other’s lives better instead of harder thank you for joining me on this highly subjective and equivocal look at fair use thank you for joining Innovation Cafe if you found this video helpful please give me a thumbs up subscribe I will give you more insights into creativity more insights into the law about protecting your ideas and maybe most importantly I’m funny or amusing or something and we’ll catch you next time