Is your proposed use “fair use”? And is it “fair” everywhere?

Under the copyright laws of most countries, not every single use of every tiny particle of a copyrighted work needs to be licensed by the work’s creator or copyright holder. Certain uses may be too minimal to cause any harm to the market for the original work or, if the use were prevented by copyright law, would amount to an impermissible obstacle to free expression. Under US law, a creator or copyright holder’s rights are therefore limited by a doctrine referred to as “fair use.” Other countries recognize somewhat equivalent concepts under other names — “fair dealing” and related concepts in the UK and certain other common law countries; a much more limited set of exceptions such as the droit de courte citation (right to short quotations) in France — but the scope of these exceptions, and the manner in which they are included in the law, are radically different.

Whether a particular use falls into one of these exceptions can be difficult to determine. The American “fair use” doctrine provides almost no clear-cut answers. The current US Copyright Act sets out four factors which must be considered by a court hearing a fair use defense, but leaves the balancing of those factors to caselaw, much of which remains undeveloped. The British Copyright, Designs and Patents Act 1988 sets out a raft of specific statutory exceptions which taken as a whole constitute “fair dealing” and its related exceptions. The French Intellectual Property Code provides for only a few narrow exceptions, including parody and “analyses and brief quotations” in certain informational works.

Suppose, for example, that you are a documentary filmmaker. While shooting on a public street, you record the ambient sounds of the area, including the music booming out of the open windows of a nearby apartment. Your proposed cut of that footage includes forty-five seconds of a hit recording of a well-known song. Must you get (and likely pay for) licenses to include this music? The answer may be “yes” under US and French law and “no” under UK law.

If you are a British filmmaker, you may think your problem is solved: you are convinced, and perhaps you have taken the trouble to get a legal opinion stating, that your film does not infringe copyright in the music leaking out from the nearby apartment. However, if you intend for your film to be shown or distributed outside the UK, it will not be enough for you to rely on the exceptions provided in UK law. American law, for example, will apply to the film’s exploitation in the US, and the film’s inclusion of the music must also meet the US fair use test.

Failure to meet the burdens of a fair use-style exception to copyright law not only opens the user to copyright infringement litigation, but also may preclude distribution from the beginning. Film distributors, broadcasters and transmitters, and increasingly even festivals — and all of their insurers — will not accept films without reliable certification that all content in the film is either licensed or meets the requirements of the fair use (or equivalent) standard.

As a law firm focused on copyright in a global marketplace, the Law Offices of Joshua Graubart, P.C. can help you determine whether the use of a given work requires a license from the copyright holder, and if so, can help you to obtain or issue the necessary licenses, whether in the United States or abroad.