The Game Lawyer Blog

Intellectual Property

Two more myths about copyright that just won’t die

I want to tackle everyone’s favorite copyright violation excuse, ‘Fair Use.’

In this second post on copyright myths that persist despite facts to the contrary, I want to tackle everyone’s favorite copyright violation excuse, “Fair Use.” This, and some related myths, will be covered in this post. If you have any general questions about intellectual property, check out my basic blog post on the subject or feel free to contact me if you have something you’d like to protect. In case you’re interested, the first post on copyright myths is on the blog.

Myth #4 – “But it’s clearly ‘Fair Use’!”

Fair Use primer from the Electronic Frontier Foundation

Fair Use is often used to justify copyright infringement by those who either don’t understand it or are just looking for an excuse for bad behavior. Yes, there are plenty of legitimate fair uses out there. Many are written specifically into the law. However, I have a thing about anyone who uses the word “clearly” or “obviously” when describing their fair use of copyrighted material (I think this comes from law school training). The more you know about fair use, the more you should realize that there are few uses that are obvious or clear, aside from specifically enumerated uses like criticism or education. Even then, however, there are three other factors at play.

My point is that Fair Use is a nuanced and difficult balance of four disparate factors that have very particular meanings that may not be apparent. Even if it seems that something would weigh in the user’s favor, nothing is guaranteed.

This is where the real dilemma comes in – how Fair Use fits in with copyright law in general. Fair Use is an affirmative defense to copyright infringement. This means that one who is accused of infringement must admit that they have actually infringed, and use Fair Use as their defense. This must happen at trial or at the summary judgment pre-trial stage. It happens after costly discovery procedures, etc., and relying on a Fair Use defense is generally not something that the average person can afford.

If Fair Use is your only defense to your infringing use, you may want to think again.

Myth #5 – I can use [up to 5 seconds of a song] [up to 10% of a video] [some other small amount] legally without permission

Get permission. There are plenty of ways to license music/video/whatever in order to populate your podcast or YouTube channel.

One of the hard truths about copyright law is that ANY copying is infringement. There is no minimal amount that can be freely copied, at least not in the statute. I’ve heard this often on podcasts, where someone starts to sing a song and they mention that they can only sing up to a certain amount. It’s a myth that needs to go away.

What’s being confused here is Fair Use, I believe. They think that an insubstantial amount of the song (5 seconds, 30 seconds) is fine. However, the same problems I spoke about above apply. While it is unlikely that a copyright holder will initiate a lawsuit over 5 seconds of use, that doesn’t justify the infringement. Get permission. There are plenty of ways to license music/video/whatever in order to populate your podcast or YouTube channel.

Additionally, plenty of small time artists are creating great royalty-free music and stock photography that is inexpensive and will add professionalism to your project.

I hope you enjoyed this little look at some popular copyright myths. Remember, if you are concerned about your intellectual property, or your use of someone else’s property, contact your favorite attorney for advice.

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California game lawyer focused on providing end-to-end legal protection and legal services for video game and board game developers, as well as software and mobile app developers.
California game lawyer focused on providing end-to-end legal protection and legal services for video game and board game developers, as well as software and mobile app developers.