The following is a guest post by Emma Kleiner, Barbara A. Ringer Program fellow.
Can a gossip website use copyrighted images of celebrities without first obtaining a license? Is an author allowed to incorporate elements from a Dr. Seuss book into his own manuscript? You can find clues to answer these questions–and many others–in the U.S. Copyright Office’s Fair Use Index.
Section 107 of title 17 of the United States Code contains the doctrine of fair use. Fair use is the ability to use a work protected by copyright in certain circumstances, including for the purposes of comment, criticism, or teaching, without first obtaining permission from the rights holder. Determining whether a use is fair is a case-by-case inquiry and involves a hard look at the facts. Section 107 contains four factors for courts to consider: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work. Given this involved inquiry, there is no formula to predict exactly how a case will turn out, but prior cases on fair use can help us to understand the major issues and trends in this area.
That is where the Index comes in. The Index, launched in 2015 in coordination with the U.S. Intellectual Property Enforcement Coordinator, is a database of summaries of major fair use court decisions. It is a public resource, designed for use by anyone with an interest in the topic. It is meant to be an accessible means of understanding a complex area of law. To that end, the Index is filterable based on a number of specific categories, including jurisdiction and category of use. It also includes cases throughout the court system–from district court to the Supreme Court–and updates entries to reflect new decisions on appeal. While the Index does not contain full-length legal opinions, it includes a fact summary, question presented to the court, and determination of whether the use was fair for each case. If a reader wishes to know more, he or she may use the legal citation provided by the Index to search for the decision.
And, for the record, in Barcroft Media, Ltd. v. Coed Media Group, LLC, No. 16-CV-7634 (JMF), 2017 WL 4334138 (S.D.N.Y. Nov. 2, 2017), the court found that the use of celebrity images by a gossip website was not fair. In Dr. Seuss Enterprises, L.P. v. ComicMix LLC, 256 F. Supp. 3d 1099 (S.D. Cal. 2017), the court found that the use of Seussian elements was not necessarily fair and declined to dismiss the lawsuit against the manuscript authors. A change in one factual detail, however, may have altered the outcome in either case. That’s why sometimes the best answer about what might happen in a fair use case is the classic lawyer retort: It depends.