Infringement claims left up to courts

Hollywood is united in standing up to the proliferation of piracy, but there’s an area of copyright law that leaves the industry perpetually perplexed.

It’s the concept of “fair use,” the protection from infringement claims for certain unauthorized uses of copyrighted material, whether they be clips pulled from news broadcasts for a documentary, fleeting images used in a musicvideo or even paragraphs from a book quoted in a blog.

The rules of what specifically falls under “fair use” were never defined by lawmakers and have been left to the courts to determine. In fact, they are so unresolved that the Copyright Office has some advice for filmmakers, artists, producers, or whoever wants to pull from another’s work: Consult an attorney.

That’s created an acute sense of uncertainty in the digital age; big media seem to fret over a too-liberal use of fair use while smaller players worry that a conservative read on the provision stifles creativity.

“The effect is to create an environment of hesitation and caution,” says Bill Ivey, director of the Curb Center for Art, Enterprise and Public Policy at Vanderbilt U. “What it does is place creative individuals of goodwill into a position of noncompliance.”

He argues that while licensing is an option, it is just too difficult for a small business entrepreneur or creator to navigate, particularly when it would be necessary to deal with a large media company where it can be “very tough to get a phone call returned.”

But even big media companies have found themselves on both sides of the fence.

Rather famously, Rupert Murdoch last year declared, in an interview with Sky News Australia, “There’s a doctrine called fair use, which we believe to be challenged in the courts and would bar it altogether. But we’ll take that slowly.”

To be fair, Murdoch was talking of the frustration of seeing Google use headlines and portions of stories from News Corp. properties in its search results.

But that didn’t stop detractors from throwing Murdoch’s words back at him.

One of the latest instances is in a lawsuit filed last month by videographer Media2Air Inc., whose shots of Brad Pitt driving his motorcycle were licensed to the website TMZ. Fox News then pulled from that video for a segment on “The O’Reilly Factor.” Fox News defends it as a clear case of news media fair use, according to Media2Air, which charged, “Fox is engaged in the same bad conduct condemned by its own chairman.”

The tables were turned earlier this month, when Fox News and Chris Wallace filed an infringement suit against the campaign of Robin Carnahan, Missouri’s Democratic candidate for Senate, who used unflattering 2006 Fox news footage of her opponent, Republican Roy Blunt, in campaign spots. Fox claims that the spots leave the impression that they are endorsing Carnahan. To little surprise, Carnahan has claimed fair use.

Fox News declined comment, but Ivey argues that this is “the kind of circular model that emerges when everybody is determined to protect things to the max, unless they want to use something themselves.”

The courts have generally applied a four-factor test to fair use: the purpose and character of the use, the nature of the copyrighted work, the amount of the material taken and the effect of the use on the potential market. The First Amendment can weigh heavily in the cases of the news media and political speech, but as Ben Sheffner of the Campaigns & Copyrights blog notes, “There are certainly no hard and fast rules.”

“If someone tells you that fair use is ‘x’ number of seconds, that is all baloney,” he says.

Peter Jaszi, professor at the American U. Washington College of Law, says that he sees the fair use law “thriving in and out of the courts,” where more creators are relying on it “and no one challenges it,” or judges embrace the nuance. An example: In 2008, a publisher of a guide to the “Harry Potter” franchise lost a suit filed by Warner Bros. and J.K. Rowling, but “the judge said most of the book is fair use but in a few cases went too far,” he says.

If only for the publicity and controversy it has generated, one of the bigger showdowns over fair use to watch in the courts is the Associated Press’ suit against Shepard Fairey over the use of the image of President Obama to make his iconic “Hope” poster. The case is set to go to trial in March, but its complexities are not just where infringement ends and fair use begins. Even then, it is not so clear cut. As Sheffner points out, you can’t copyright a fact, in this case candidate Obama, but you can protect a photographer’s vision.

“It’s a tricky enterprise to separate out what are the facts presented in that photograph versus what is the expression of the photographer,” he says.

Maybe the Copyright Office should offer up another message: Good luck.

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