Using Copyrighted Material Without Violating Copyright Law: The Fair Use Doctrine (Series: One Hour Law School)

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Practical and entertaining education for
attorneys, accountants, business owners
and executives, and investors.
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DISCLAIMER
The material in this webinar is for informational purposes only. It should not be
considered legal, financial or other professional advice. You should consult with an
attorney or other appropriate professional to determine what may be best for your
individual needs. While Financial Poise™ takes reasonable steps to ensure the information
it publishes is accurate, Financial Poise™ makes no guaranty in this regard.
About this PowerPoint: if you are looking at this PowerPoint without the benefit of
listening to the conversation that surrounded it then you are doing yourself a disservice.
This PowerPoint was prepared in contemplation of being viewed in conjunction with
listening to a one hour webinar on the topic
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MEET THE FACULTY
Moderator:
Max Stein – Boodell & Domanskis LLC
Panelists:
Jessica Fishfeld – Sidley Austin LLP
Chelsie Spencer – Ritter Spencer, PLLC
Kevin Tottis – TottisLaw
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ABOUT THIS WEBINAR: Using
Copyrighted Material Without Violating
Copyright Law: The Fair Use Doctrine
Content on the internet is generally free, readily accessible and easily copied. Yet, copyright
laws place significant restrictions on the use and reproduction of such content. And media
companies don’t take kindly to unauthorized use, regularly policing and frequently threatening
suit and severe penalties for copyright violations. Still, non-media oriented businesses
frequently trip on copyright laws, facing claims for clips or excerpts in marketing materials,
publications, blog postings or any number of other innocent activities. Learn the ropes of
copyright compliance with us in this practical, informative program.
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ABOUT THIS SERIES: One Hour Law
School 2.0 – Tell Me What I Need to
Know
Looking for a practical introduction to some of the issues facing business people and
businesses of all sizes? In this program, you’ll learn (1) the obligations and key considerations
with regard to data privacy and security, both as a consumer and a vendor; (2) considerations
for safe use of copyrighted material in advertising, earned media, and professional
communications; (3) establishing and maintaining non-profit organizations; (4) RICO related
issues that may impact business practices; and (5) best practices and business considerations
with regards to Fair Debt Credit Reporting Act.
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EPISODES IN THIS SERIES
6/18/19 Episode #1: Data Privacy & Security -101
7/16/19 Episode #2: Using Copyrighted Material Without Violating
Copyright Law: The Fair Use Doctrine
8/13/19 Episode #3: Representing a Not-For-Profit
9/17/19 Episode #4: RICO
10/15/19 Episode #5: Fair Debt Credit Reporting Act
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Dates shown are premiere dates.
All webinars will be available
On Demand approximately 4 weeks
after they premiere.

Episode #2:
Using Copyrighted Material Without
Violating Copyright Law: The Fair Use
Doctrine
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WHAT IS A COPYRIGHT?
• A copyright is an intellectual property right that protects original works of
authorship fixed in a tangible medium. For example, copyright protects
literary, musical, and dramatic works.
• A copyright protects the expression of ideas, not the underlying ideas of the
work. For example, an idea of a song is not protectable, but the written sheet
music is protectable.
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REQUIREMENTS FOR COPYRIGHT
PROTECTION
• A copyright protects a work or expression that is:
 Original (also known as the originality requirement)
 Fixed in a tangible medium of expression (also known as the fixation requirement)
 Authored by one or more persons
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COPYRIGHT REQUIREMENTS:
ORIGINALITY
• Originality is said to be the touchstone and sine qua non of copyright. Originality in the
sense of copyright protection does not mean the work or expression must be an original
or inventive thought.
• To be original:
 A work must be independently created;
 A work must originate from the author;
 A work must possess a modicum of creativity; and
 A work must not be copied from another work or expression.
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COPYRIGHT REQUIREMENTS:
ORIGINALITY (CON’T)
• Originality does not mean the work must be novel or entirely new.
• A compilation of facts, such as an encyclopedia, or derivative works, such as a
translation of a book, may receive copyright protection as long as there is a modicum of
creativity.
• For example, a phone book may possess a modicum of creativity depending on how the
facts are selected and arranged.
• A small amount of creativity will meet this creativity requirement, even if the
expression is obvious.
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COPYRIGHT REQUIREMENT: FIXATION
• A work is fixed in a tangible medium when the work is sufficiently stable to permit it to
be perceived, reproduced, or otherwise communicated for a period of transitory
duration.
 Although the work of authorship receives protection, it must be fixed in some
tangible medium. For example, a musical composition (the work of authorship)
receives copyright protection, but it must be fixed in a tangible medium, such as
sheet music, an audiotape, or a computer hard drive, to receive copyright
protection.
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COPYRIGHT REQUIREMENT:
AUTHORSHIP
• A work or expression must have an author.
 Authorship is a human endeavor, and authors of a copyrightable work or
expression must be persons.
 Corporations are considered “authors” under the Copyright Act, but animals are not
considered “authors.” A court recently held a monkey did not have a copyright to a
“selfie” picture.
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WHAT TYPES OF WORKS RECEIVE
COPYRIGHT PROTECTION?
• Section 102 of the Copyright Act lists general categories of subject matter of copyright.
• Examples of copyrightable material include:
 Literary works;
 Musical works, including any accompanying words;
 Dramatic works, including any accompanying music;
 Pantomimes and choreographic works;
 Pictorial, graphic, and sculptural works;
 Sound recordings; and
 Architectural works.
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WHAT TYPES OF WORKS RECEIVE
COPYRIGHT PROTECTION? (CON’T)
• N.B. The copyright of a compilation or derivative work extends only to the material
contributed by the author of such work, as distinguished from the preexisting material
employed in the work, and does not imply any exclusive right in the preexisting material.
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WHAT TYPES OF WORKS ARE
EXCLUDED?
• Pursuant to Section 102 of the Copyright Act:
 In no case does copyright protection for an original work of authorship extend to
any idea, procedure, process, system, method of operation, concept, principle, or
discovery, regardless of the form in which it is described, explained, illustrated, or
embodied in such work.
• Copyright also does not extend to U.S. government works or typefaces.
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COPYRIGHT RIGHTS
• A copyright gives its owner the exclusive right to:
 Reproduce the work – others cannot reproduce the work without permission.
 Prepare derivative works – others cannot create adaptations without permission.
 Distribute copies of the work – others cannot distribute copies without permission.
 Perform works – others cannot publicly perform certain works.
 Display works – others cannot publicly display certain works.
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COPYRIGHT OWNERSHIP
• Generally, the creator(s) of the work owns the copyright, except for:
 “Work Made for Hire”
o A work prepared by an employee within the scope of his or her employment is
owned by the employer.
o Certain works specially ordered or commissioned are not owned by the creator,
if the parties expressly agree in writing that the work is a work made for hire.
 Assignment of copyright: an owner of a copyright may transfer interest in each of
the exclusive rights under a copyright.
 Sale of the entire copyright.
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COPYRIGHT OWNERSHIP (CON’T)
• Joint authorship exists where two or more authors contribute to a single work
intending that their contributions be created into an inseparable or interdependent
whole.
 Inseparable – the contributions have no or little independent meaning standing
alone.
 Independent – the contributions have some meaning standing alone, but
achieve significance when combined.
• Each joint author shares equally in the ownership of the work, even if the contributions
were unequally made.
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BENEFITS OF REGISTRATION
• Copyright registration is no longer necessary for protection, but registration provides
certain benefits to owners. Benefits to obtaining copyright registration include:
 Registration is required to commence a lawsuit.
 Timely registration permits a copyright owner to seek statutory damages, which can
help force prompt settlement.
 Timely registration makes a copyright owner eligible for an award of attorneys’ fees
in a successful infringement lawsuit.
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BENEFITS OF REGISTRATION (CON’T)
• Copyright registration is no longer necessary for protection, but registration provides
certain benefits to owners. Benefits to obtaining copyright registration include:
 Registration within 5 years of publication carries with it a presumption of the
validity of the copyright and of the facts stated in the certificate.
 Registration permits the copyright owner to seek the assistance of the U.S. Customs
and Border Protection.
 Registration provides contact information for interested parties to obtain a license.
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BENEFITS OF NOTICE
• Copyright notice is no longer required for a work to be protected under the federal
Copyright Act. Benefits to providing notification include:
 Notice informs the public the work is protected, deterring infringement and
facilitating licensing.
 Notice prevents an “innocent infringer” defense, which acts as a defense to actual or
statutory damages.
• Notice should include symbol/word/©, year of publication, and name of owner.
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LIMITATIONS ON COPYRIGHT
• “Merger”: If an idea can only be expressed in one way, the idea and expression “merge”
and no protection can be afforded. For example, the Ninth Circuit held that a copyright
on a jeweled bee pin merged, because it was the only way to create a bee pin using a
small number of jewels.
• “Scenes a Faire”: Indispensable elements of a work are protected only against nearly
identical copying.
• “Functionality”: Functional or useful features of a work only receive copyright
protection to the extent the features can exist independently.
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LIMITATIONS ON COPYRIGHT (CON’T)
• “Fair Use”: Reproduction of a work for criticism, for purposes such as parody, comment,
news reporting, scholarship or research is a complete defense to copyright infringement
if it is fair use.
 Courts apply the following four non-exhaustive statutory factors to determine “fair
use”:
o The purpose and character of the use;
o The nature of the copyrighted work;
o The amount and substantiality of the work used; and
o The effect the use has on the work’s value.
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LIMITATIONS ON COPYRIGHT (CON’T)
• “First Sale” or “Exhaustion”: The owner of a copy of a work is entitled to sell or dispose
of that copy without the copyright owner’s consent. In Kirtsaeng v. John Wiley & Sons,
Inc., the Supreme Court held that the “first sale” doctrine applies to copies of works
lawfully made abroad.
• Statute of Limitations: A claim for copyright infringement must be brought within three
years from the date of accrual. A “separate-accrual” rule applies, which allows the
statute of limitations to run separately for each act of infringement.
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COPYRIGHT INFRINGEMENT
• Copyright infringement occurs when a party exercises an exclusive right afforded
to the copyright owner without the owner’s permission.
• A party that knowingly induces, causes, or materially contributes to copyright
infringement, may be held liable as a contributory infringer even if the party has
not committed or participated in the infringing acts.
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COPYRIGHT REMEDIES
• Copyright remedies include:
 Preliminary Injunction – requires a showing of irreparable harm.
 Monetary Damages – a party may recover damages incurred as a result of the
infringement, including an infringer’s profits to the extent the profits do not exceed
the owner’s losses.
 Statutory Damages – range from $750 to $30,000, and a court may increase
damages to $150,000 for willful infringement.
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DETERMINING COPYRIGHT OWNERSHIP
• Copyright Online Catalogue
 http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First
• An easy way for determining copyright ownership is through online databases. In such
a database, you can search by, for example:
 Title of Work
 Name
 Registration Number
 Document Number
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COPYRIGHT LICENSING
• A transfer of a copyright may be for all of the rights or a limited number of rights.
When an owner transfers less than all rights to a third-party, it does so through a
license.
• A license may be exclusive, non-exclusive, or both.
• The fee for the licensed rights is typically called a royalty.
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COPYRIGHT LICENSING (CON’T)
• Examples of copyright licensing organizations:
 ASCAP - Music
 BMI – Music
 SESAC - Music
 Joe Hand Promotions – Pay-Per-View UFC
 G&G Sports – Pay-Per-View Boxing
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COPYRIGHT LICENSING (CON’T)
• Creative Commons is a licensing organization that provides owners a standardized way
to grant licenses to their works.
• Types of Creative Commons licenses:
 Attribution
 Attribution-ShareAlike
 Attribution-NoDerivs
 Attribution-NonCommercial
 Attribution-NonCommercial-ShareAlike
 Attribution-NonCommercial-NoDerivs
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FAIR USE
• “Fair Use” defined: a defense against a claim of copyright infringement.
• The sole instance when can you use another’s work without a release from the
copyright owner, and it won’t be copyright infringement.
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FAIR USE (CON’T)
Balancing Test: Fair Use depends on the facts of the particular case
• Nature Of The Use
• Nature of the Copyrighted Work
• Amount And Substantiality Of The Portions Used
• Effect On The Potential Market For The Original Work
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FAIR USE (CON’T)
Nature Of The Use
• The six cases: Criticism; Comment; News Reporting; Teaching; Scholarship;
Research
• Is the new work transformative?
• Parody - may be fair use, even if commercial. Needn’t be funny, but must comment
on or criticize the original. (ex. on next slide – “Wind Done Gone” – twist on “Gone
With the Wind” from the slaves’ perspective; 50 Shames of Earl Grey)
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FAIR USE (CON’T)
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FAIR USE (CON’T)
Nature Of The Copyrighted Work
• Because the dissemination of facts or information benefits the public, more leeway
to copy from factual works such as biographies than from fictional works such as
plays or novels.
• Stronger case of fair use if you copy the material from a published work than an
unpublished work. The scope of fair use is narrower for unpublished works because
a creator has the right to control the first public appearance of his or her expression.
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FAIR USE (CON’T)
Amount And Substantiality Of The Portions Used
• The less you take, the more likely that your copying will be excused as a fair use.
• However, even if you take a small portion of a work, your copying will not be a fair
use if the portion taken is the “heart” of the work.
• The less-is-more rule is not necessarily true in parody cases.
• There is no bright line rule as far as number of lines/pages.
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FAIR USE (CON’T)
Effect On The Potential Market For The Original Work
• Does your use deprive the copyright owner of income or undermine a new or
potential market for the copyrighted work?
• Depriving a copyright owner of income is very likely to trigger a lawsuit, even if you
are not competing directly with the original work.
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FAIR USE (CON’T)
The “Fifth” Factor – How You Are Perceived
• Fair use involves subjective judgments, often affected by factors such as a judge or
jury’s personal sense of right or wrong.
• Despite the fact that the Supreme Court has indicated that offensiveness is not a fair
use factor, a morally offended judge or jury may rationalize its decision against fair
use.
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FAIR USE (CON’T)
Some Takeaways:
• Attribution Alone Is Not Sufficient
 Acknowledgment of the source material (such as citing the author/photographer)
may be a consideration in a fair use determination, but it will not protect against a
claim of infringement.
 In some cases, such as ads, acknowledgments can backfire and create additional
legal claims, such as a violation of the right of publicity.
 When in doubt as to the right to use or acknowledge a source, the most prudent
course may be to seek the permission of the copyright owner.
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FAIR USE (CON’T)
Some Takeaways:
• Few reliable rules of thumb but…
 Titles of songs, movies, TV shows, names of people, places, things are OK to use.
 Songs – usually always require permission to use one or more lines.
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ABOUT THE FACULTY
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Max Stein – MStein@boodlaw.com
Max Stein, a member of Boodell & Domanskis, LLC, is a business litigator focused on
meeting clients’ business objectives, helping them resolve disputes at the most opportune
times. Max represents clients as both plaintiffs and defendants in a wide variety of forums.
Additionally, Max notes that one advantage of practicing at a smaller firm, is that he is able
to offer his clients high-quality, nimble representation at reasonable rates. To aid his
clients in achieving their business objectives, Max approaches cases as though they will go
to trial, utilizing his extensive trial experience. Max also counsels his clients, helping to
identify and navigate legal risks to achieve their business goals and protect their
competitive interests while managing and, where possible, avoiding the expense and
uncertainty of litigation.
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Jessica Fishfeld – Jessica.fishfeld@gmail.com
Jessica Fishfeld is in the litigation group at Greenberg Traurig in
Miami, Florida. She has vast experience litigating complex commercial
disputes and advising clients on how to diffuse commercial conflicts
and avoid litigation. She has particular experience handling disputes
between commercial competitors, such as in matters involving
allegations of breach of contract, unfair trade practices, intellectual
property infringement, trade secret misappropriation, and other
business torts.
*Currently admitted in Illinois only. Not yet authorized to practice law in Florida.
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Chelsie Spencer – cspencer@ritterspencer.com
Chelsie Spencer’s practice focuses on transactional and litigation work in intellectual property and complex
commercial matters. Chelsie has secured registration of numerous federal trademarks and copyrights for her
clients. She has negotiated and drafted trademark and copyright licensing, consent, coexistence, and
assignment agreements for a variety of industries, including record labels, publishing companies, authors, and
other content owners.
Chelsie also practices in the areas of medical marijuana, cannabidiol, and industrial hemp and represents
clients within those industries for business law and compliance issues. She represents many businesses in the
industrial hemp industry for their trademark registrations and trademark portfolios containing goods
including cannabidiol as an ingredient. She is very active in lobbying and legislative activity in these fields and
frequently writes, speaks, and presents on issues affecting these industries across the United States.
Chelsie’s litigation experience includes enforcing and defending claims of copyright infringement, trademark
infringement, patent infringement, false designation of origin, trade secret misappropriation, breach of
contract, and tortious interference with contract, among others. She is licensed in both Texas and Florida and
has represented clients in federal and state litigation throughout the nation, at both the trial and appellate
level. She has tried numerous cases to verdict in both state and federal courts.
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Kevin Tottis – ktottis@tottislaw.com
Kevin heads up TottisLaw, a commercial and IP litigation boutique in Chicago he
opened in 1996 after several years as a partner in a national law firm. He handles
cases for clients across the country in all areas of intellectual property law and also
serves as an arbitrator with the American Arbitration Association. Kevin currently
sits on the Executive Committee of the Copyright Society of the USA. He served on
the Board of Directors of the American Intellectual Property Law Association and,
before that, chaired its Copyright Law Committee. He also was lead counsel before
the Supreme Court in AIPLA’s amicus filing in Kirtsaeng v. John Wiley & Sons, Inc.
He’s one of the U.S. designates on the Committee on Copyrights for the Association
Internationale pour la Protection de la Propriètè Intellectuelle, is a Fellow of the
American Bar Foundation and has been named an Illinois Super Lawyer since
2010.
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QUESTIONS OR COMMENTS?
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IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily
for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education.
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Using Copyrighted Material Without Violating Copyright Law: The Fair Use Doctrine (Series: One Hour Law School)

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