OTW Legal Answers Your Fair Use Week Questions!

It’s Fair Use Week! On Monday, we invited you to ask us anything about fair use and fair dealing law as it applies to fandom, and said we’d answer your questions at the end of the week. True to our promise, here are the answers to your (paraphrased) questions!

With the caveat that this post should not be taken as legal advice–anyone seeking legal advice about specific situations is welcome to contact us, and we can help you find representation–let’s dive into the questions and answers!

What do you mean when you say that fair use is the law that makes transformative noncommercial fanworks legal in the U.S.?
There are a lot of U.S. laws that may apply to fanworks, but copyright law is the most applicable. The fair use doctrine, found in the U.S. law at 17 U.S.C. section 107, describes factors that courts consider in determining whether a copy “fair use”–that is, it does not infringe copyright. Although fanworks usually copy some elements of copyrighted works, they tend to do so in a way that the fair use factors favor. Specifically, fair use favors uses that transform the meaning or purpose of the original; that are noncommercial; that copy only part of the original, rather than the whole thing; and that do not compete in the market with the original. These things all tend to be true for fanworks, which frequently add new meaning to the original, are shared for free, copy only certain elements of the original (like characters, settings, images, clips, etc. rather than entire works), and enhance the market for the original rather than competing with it. So the more a fanwork fits that description, the more likely it is to be fair use. This isn’t to say that other legal doctrines might bump up against fanworks–some fanworks might raise questions about trademarks, rights of publicity, or even defamation law–but fair use tends to make fanworks legal as a matter of copyright law.

What does “noncommercial” mean when it comes to fair use? If you raise money or pay someone to help you make a fanwork, is that commercial?
The answer to this question isn’t set in stone, but it’s generally accepted that for fair use purposes, if a work is made for financial benefit–for example, if the work is made to be sold for a profit–that the work is commercial rather than noncommercial. Giving a work away for free, without expectation of financial benefit, is noncommercial. And in fact, other financial transactions–such as raising money to pay for the cost of creating a work; spending money on materials, tools, or other creation costs; or receiving indirect benefits that aren’t tied to a particular work–doesn’t necessarily make a work commercial. This is an area that isn’t as well settled as other areas of fair use, but the policies behind the fair use doctrine and copyright law, of encouraging the creation of new meanings and purposes for old works that don’t compete with the original, counsel for a broad interpretation of “noncommercial.” Also, even if someone is engaged in a moneymaking venture, they still might be engaged in fair use. While the commercial aspects of a project are one of the factors a court looks at when determining if a use is fair use, commerciality is not the only factor. So while the Organization for Transformative Works is a nonprofit, and our legal advocacy team focuses on noncommercial works, we do want to note that commercial works can also be noninfringing because of fair use.

Isn’t fair use law really unpredictable?
Research into court decisions has shown that fair use law is actually pretty predictable: when works transform the meaning or purpose of the original and do not compete with the original in the market, they are likely to be found to be fair use. That said, “predictable” is not the same as “certain,” and legal disputes over whether a use is fair can be divisive, expensive, and lengthy, even when they shouldn’t be.

If a fan receives a DMCA takedown notice for posting a fair use fanwork on the Internet or has a fair use fanwork taken down as a result of such a notice, is there anything the fan can do?
Fair use is authorized by U.S. law, so posting a fair use fanwork on the Internet is legal as a matter of U.S. copyright law. Copyright owners have a legal obligation to consider whether something is fair use before issuing a takedown notice, but sometimes they don’t comply with that requirement, or get it wrong. When that happens, the DMCA contains a procedure called “counter-notification” that you can use to resist a takedown notice or have a fair use work put back up. Most sites have procedures for submitting counter-notifications. Here’s a post on how OTW Legal staffer Heidi approached counter-notifying for a takedown request she received via tumblr.

Does putting a disclaimer on your fanwork (e.g., “I don’t own these characters, the original creator does”) make it fair use?
Disclaimers are good things, but they don’t actually have an impact on fair use. A use that’s fair will be fair use regardless of whether it has a disclaimer – and a disclaimer won’t help a copy that isn’t fair use (like, for example, uploading an entire copyrighted movie for others to share and watch). That doesn’t mean that fans should stop putting disclaimers on their fanworks – it’s a good ethical practice, and it honors those who created the original works – but it isn’t something courts are likely to consider in determining whether a use is infringing. That said, although you definitely don’t need to add a note to your work about it being fair use, it never hurts to explain ahead of time why you think it might be.

Is Real Person Fic (“RPF”) legally safer than other kinds of fanwork, because copyright infringement’s copyright infringement no matter what disclaimer you put on it, but people featured in RPF would have to try to prove that the story could be taken as being real (and thus defamatory), which is pretty hard when you’ve put a disclaimer stating it isn’t?
It’s true that a disclaimer probably won’t do anything to make an infringing work fair use (see above) but (see even-more-above) most fanworks will be fair use without disclaimers. As for Real Person Fic, even without fair use law, RPF would be very unlikely to be copyright infringement, because there’s no underlying work to copy. As this questioner points out, RPF can raise questions about defamation or rights of publicity. There’s no “fair use” doctrine for those areas of law, but noncommercial RPF is still quite safe as a matter of law: defamation laws generally require that a false assertion could be taken as true (which as the questioner pointed out, can be rebutted with a disclaimer); and right of publicity laws usually do not apply to noncommercial works.

My understanding is that if a complete video is required to meet the learning objectives for an online class, that it is fair use to stream the video behind a password protected learning management system for the duration of the assignment. If the video is offered via an online vendor, does that disallow our streaming it locally?
Going through an online vendor wouldn’t impact whether an educational use is fair use–and as this questioner has pointed out, educational uses are often fair uses even when they use or copy entire works. That said, users should check the terms of service of the vendors they are using, because there may be contractual terms prohibiting certain kinds of uses. In those cases, the use wouldn’t be a copyright problem, but could be a contract/terms of service problem.

Is it fair use to circulate media articles to friends and colleagues? In the past, I have refrained from sharing articles from a paid site because it might not be fair use, considering the newspaper might lose sales of their newspaper if I provide the article on social media or a webpage. Of course, I would not be sharing the newspaper in its entirety, but only a small part if it.
Each article is a separate “work” for purposes of copyright, so sharing entire articles would mean sharing entire works. Would that be infringing? First, some newspapers and media sites invite their subscribers to share articles, and even provide links and tools allowing people to do so, in which case users can feel comfortable using those tools. But as for sharing articles from a paid site that does not issue such invitations, the more transformative and limited the copying is, the more likely it is to be fair use. For example, reviews of articles are generally fair use, even if they contain direct quotes, because they have transformative meaning or purpose (i.e., criticism or commentary). With that in mind, it would arguably be fair use to share parts of articles accompanied by commentary or criticism. It would be harder to argue that it’s fair use to share an entire article without any commentary or criticism, especially if circulated in a way that would compete in the market with the original by discouraging others to subscribe on their own.

I’m aware that life stories aren’t copyrightable (because they aren’t copies of underlying “works”) — so is a “behind the scenes” story of a film or TV show which contains imagery of or references to copyrighted characters, infringement?
A “behind the scenes” story that refers to to copyrighted elements in the original (such as its characters, settings, stories, and the like) would likely be fair use, not infringement. The “behind the scenes” element would involve some copying of those elements, but it would transform their meaning (into a story about the production, not the underlying copyrighted work), it would copy only small elements of the copyrighted work, and it would not compete with the original work in the market. So barring something unusual, that sort of work would likely have the hallmarks of fair use.

Well, that’s it for this year’s Fair Use Week Q&A! But remember, you can ask us questions all year ’round. Just Contact Us and ask away.

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