A Welcome Return to Sensible Fair Use Determinations

In light of Fair Use Week 2020, it is important to recognize that while the fair use doctrine allows for unauthorized use in certain circumstances, it’s a fundamentally limited legal construct that must not be allowed to run roughshod over the rights of creators and copyright owners. In recent years, increasingly broad interpretations of the fair use factors— particularly transformativeness, under the first factor have resulted in permissive, wholesale commercial copying. Ultimately, the interplay between copyright’s exclusive rights and fair use should promote the progress of creative expression, and recent court decisions represent a return to reason in pursuit of the Constitutional aims of copyright.

The critical balance between exclusive rights and fair use is reinforced by two recent cases that illustrate the spectrum of when fair use should be found and when it should not. At one end of the spectrum where fair use was not found is Comerica Bank & Trust, N.A. v. Habib, in which an individual posted videos of Prince concerts on YouTube without authorization.[i] At the other end of the spectrum where fair use was found is Red Label Music Publishing, Inc. v. Chila Productions, where a production company used short clips from a music video without authorization to comment on the historical 1985 Chicago Bears football team.[ii]

Before comparing the cases, it is necessary to provide a brief explanation of the framework courts use to determine whether a use is fair. “The ultimate test’ of fair use is whether the progress of human thought would be better served by allowing the use than by preventing it.'”[iii] In a nutshell, courts compare the original work and the new work by analyzing and weighing four factors. The first factor is the purpose and character of the new use. This factor considers whether the new use is “transformative” in that it adds something new to the original work or presents the original in a different light and whether the new use is commercial or for nonprofit educational purposes. The second factor is the nature of the copyrighted work, which asks whether the copyrighted work is creative or factual, and if it has been previously published. Third, courts look to the amount and substantiality of the new use in relation to the original work. The fourth factor is whether the new work affects the market for the original work. It considers the degree of market harm caused by the new work and potential market harm that may arise.

The chart below summarizes how each court from the cases mentioned above assessed whether the respective use at issue was fair.

Comerica Bank & Trust, N.A. v. Habib (D. Mass. 2020)Fair Use Case NameRed Label Music Publishing, Inc. v. Chila Productions (N.D. Ill. 2019)
The defendant, Habib, recorded videos of Prince performing musical compositions at a concert. Years later, Habib posted those videos on YouTube with titles such as “rare” or “amazing” Prince performance. Habib did not alter the compositions in any way and he encouraged people to subscribe to his channel and comment on his videos. Nor did Habib have permission from the Prince estate to upload the videos.FactsThe 1985 Chicago Bears football team recorded a hip-hop music video for their song, Super Bowl Shuffle. Chila Productions used a total of 59 seconds in short clips from the music video in a historical documentary on the Chicago Bears. The Super Bowl Shuffle audio was paired with the music video for eight seconds. The other clips were accompanied by spoken commentary. Chila did not have a license to use the clips.
Fair use not found, all factors weighed against fair use.HoldingFair use found. Factors 1 and 3 weighed toward fair use and factors 2 and 4 were at least neutral.
Habib’s videos were identical copies of Prince’s compositions and Habib did not add new expression or meaning to those compositions. The videos were not educational or historical but were instead for social gain. This factor weighed against fair use.Factor 1:
Purpose & Character of the Use
The documentary commented on the Super Bowl Shuffle in a historical fashion, which was transformative. Thus, the documentary repurposed the footage for historical purposes and did not serve as the primary expressive function within the documentary. Rather, it was a video within a video. The use in the documentary is precisely the type of use that fair use was designed to shield. This weighed toward fair use.
The compositions that Habib copied are creative in nature, which embody the core of protected works. This factor weighed against fair use.Factor 2:
Nature of the Copyrighted Work
The second factor was found to be neutral. Although the Super Bowl Shuffle is a creative work, this factor was largely irrelevant because the purpose found in the first factor is highly transformative.
The videos “appropriated the heart” of the underlying compositions, essentially providing the viewers with the best parts of each composition. This factor also weighed against fair use.Factor 3:
Amount and Substantiality of the Use
The documentary used 16 one-to-eight second clips, for a total of 59 seconds. Those clips were a small part of the Super Bowl Shuffle and a very small part of the documentary. This factor weighed in favor of fair use.
Habib’s videos diverted views and accompanying advertisement revenue from videos on Prince’s YouTube channel. Additionally, the Habib videos were of poor-quality which diminished the right and ability for Prince’s estate to police the caliber of secondary uses. This weighed against fair use.Factor 4:
Effect on the Market
As to the fourth factor, the documentary would not be a substitute for the Super Bowl Shuffle. Also, the documentary serves an entirely different market function than the original. Although there is a market for licensing the Super Bowl Shuffle and Red Label may have suffered some economic damage, the purposes of the works are so different that it is immaterial.

In Habib, the U.S. District Court for the District of Massachusetts explained that fair use “serves to mediate the inevitable tension between the property rights lying in creative works and the ability of authors, artists, and the rest of us to express them, providing a degree of protection to each where merited.”[iv] However, “fair use is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors.”[v]

The two cases illustrate how the fair use doctrine concurrently prohibits slavish copying and allows for truly transformative uses that comment on an original work in? a separate market function. Uses that involve verbatim copying for the same purpose as the original and adversely affect the market for the original work — such as in Habib — are not fair uses. Alternatively, uses that provide commentary on an original work and serve a different market function — such as in Chila Productions — are often held to be fair. Taken together, these cases demonstrate the reasonable and intended application of the fair use doctrine.

[i] See Habib, 2020 U.S. Dist. LEXIS.

[ii] See Red Label Music Pub’g, Inc. v. Chila Prods., 388 F. Supp. 3d 975 (N.D. Ill. 2019).

[iii] Brammer, 922 F.3d at 262 (quoting Cariou v. Prince, 714 F.3d 694, 705 (2d Cir. 2013).

[iv] Comerica Bank & Tr., N.A. v. Habib, 2020 U.S. Dist. LEXIS 1343, at *16-17 (D. Mass. Jan 6, 2020) (citations and internal quotations omitted).

[v] Id. (citations and internal quotations omitted).

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