Copyright can be tricky. Too many novice screenwriters out there don’t understand the dynamics of it and end up either unknowingly using someone else’s copyright in their own stories or trying to write sequels to intellectual properties that aren’t theirs (and will have a difficult time selling).
Here, we turn to entertainment lawyer Gordon Firemark and his YouTube video Entertainment Lawyer Explains Fair Use for some informed and educated advice on understanding the fair use of copyright.
What Is Fair Use?
Fair use is one of the most complicated elements of copyright law. Fireman reminds us:
“It’s important that you understand there are no rules of thumb. Each case has to be evaluated standing on its own.”
Fair use was a doctrine that evolved from the old copyright laws of the United States (circa 1907). It was later adapted into the 1976 copyright law update.
Section 107 of the Copyright Act establishes the legal guidelines for assessing whether an activity qualifies as fair use, and it lists specific categories such as criticism, commentary, news reporting, teaching, scholarly work, and research as examples of potential fair use purposes.
“The principal was simple. To deal with the inherent conflict between the free speech principles of the First Amendment and restrictions on copying imposed by the copyright law, it was necessary to create a defense for infringement for certain kinds of usage under certain circumstances,” Firemark said.
To clarify, the courts were dealing with two laws colliding. The first was free speech, which allows the freedom of speech and expression found within the First Amendment of the U.S. Constitution.
The second was the updated Copyright Act that protected the works of who we would now refer to as content creators (authors, playwrights, songwriters, screenwriters, and content writers). The collision of these laws bore questions like:
- Can someone recite the works of another in a speech?
- Can works of art (plays, songs, movies, TV episodes, etc.) be referenced in others?
The defense created for the usage of copyrighted material (or references to them) was fair use. It was broken down into four factors of consideration.
Read More: Screenwriters Beware! Copyright and Nondisclosure Agreements
1. The Purpose and Character of the Alleged Infringing Use
Is it being used for scholarly or educational use? Is it being used for critical criticism by material reviewers or critics? Or is it being used for commentary or artistic or transformative purposes?
These reasons would all favor the defense of fair use. However, if the copywritten material (or parts of it) is used for commercial use or verbatim copying, the scales could tip in the other direction in the eyes of the court.
2. The Amount and Substantiality of the Portion Taken from the Original
How much is being taken from the original source material? Another element taken into account is the amount and substantiality utilized.
Quoting a source, referencing the content, taking a piece of the content out of context, and other portions can be taken into account when judging whether fair use is legal. But it also depends on what particular element of the piece is taken.
“This is where the idea that taking only a small snippet is okay comes from. But in reality, it’s actually possible to take the very heart of a piece without copying very much at all,” said Firemark.
3. The Nature of the Original Work
“If it’s an artistic work, it’s going to be treated very differently than if the original was something very commercial like a billboard, an advertisement, or TV commercial jingle, or something like that,” Firemark said.
If a character in a movie is talking with other characters and referencing a particular iconic commercial from their youth, singing the lyrics, and referencing the music, fair use likely comes into play in most cases.
However, if that same movie is using a song written by a musician without their consent, and passing it off as their own (or the movie’s own), then that is clear copyright infringement.
4. The Effect the Infringement Has on the Market of the Original
If the use of any portion of the original isn’t going to affect the market the original benefits from, then it’s likely fair use may be ruled.
“If the market is strong for this kind of thing, and the copying looks like it’s just a way to avoid paying for rights or whatever, things are going to come out differently on this factor,” said Firemark.
All Four of These Factors Will Be Balanced in Copyright Infringement Decisions
This is where writers can get into trouble. People learn about these deciding factors but forget or don’t understand that falling under one of these factor umbrellas in any potential infringement doesn’t get them in the clear for possible copyright violation. Courts use all four of these factors to balance out their decision-making process.
Firemark said, “This is not a one-size-fits-all thing. Each alleged infringement has to be viewed standing alone by the court in a copyright infringement lawsuit.”
Writers can’t just decide for themselves if they’re infringing on someone’s copyright. The courts decide on a case-by-case basis. That’s the inherent risk of referencing or using other people’s copyright and intellectual property.
“By the time most folks get to argue about whether their use is fair, they’re already being sued and paying lawyers tens of thousands of dollars to defend them,” Firemark noted.
Read More: 5 Things Screenwriters Should Know About Copyright Law
The Best Course of Action for Fair Use
Asking (and sometimes paying) for permission to use elements of copywritten material is the best and most risk-averse way to go about doing this kind of business. Although most writers know that they can’t afford to pay for the use.
When in doubt, writers should contact an entertainment lawyer.
Is Parody Fair Use of Copyright?
Parody can come into play with fair use. However, it’s primarily only allowed as it pertains to social commentary rather than purely commercial gain.
Copyright infringement with parody is a tricky line to walk. You are allowed to parody pop culture properties in copyright law. However, you can’t outright steal visuals, plot points, and original conceptual designs.
Here’s a real-life example involving George Lucas and Mel Brooks’ attempt at Star Wars parody with Spaceballs.
Brooks was worried about the possibility of being sued by Lucas. He wanted to stay as close as he could to the imagery, visuals, and mythos of Star Wars, but he also didn’t want to get sued by Lucas doing so.
So, fearing a lawsuit (because Lucas was infamous for being very protective of his Star Wars intellectual property rights), Brooks called Lucas and told him that he wanted Lucas’s special effects company, ILM, to do all of the effects for the movie. He paid around $5 million to retain those services.
Lucas also promised Brooks that Spaceballs could proceed without any legal disputes, provided there was no commercialization of the parody.
The most valuable asset for Lucas was the merchandising rights to Star Wars. When he struck a deal with Fox to direct Star Wars and secure studio funding, he also negotiated for the rights to merchandise and potential sequels.
During that era, merchandise rights for films were not taken seriously and didn’t generate significant revenue until the debut of Star Wars. Once the film was a hit, Star Wars merchandise became far more lucrative than the box office receipts of each franchise installment—to the tune of $20 billion and counting.
Lucas wanted to avoid any confusion in the merchandising market between Star Wars and Spaceballs. Brooks completely agreed with this stance and was further at peace because he knew it meant he could create his parody without any legal obstacles.
Brooks, known for his comedic brilliance, even incorporated an inside joke about Spaceballs merchandise into the film.
As you can see, even fair use by way of parody doesn’t give anyone free license to infringe upon somebody’s copyright and intellectual property.
So, What Did We Learn About Fair Use?
While there are plenty of ways to try and justify using elements of someone else’s copyright and intellectual property, it’s best to stay away from it as much as you can.
It’s one thing to have characters talking about the deeper dynamics of Return of the Jedi and its similarities with real-world contracting risks…
… and a completely different thing to pull concepts, stories, characters, designs, visuals, and dialogue for your own stories.
When in doubt, skip it and create something original.
If you’re going to chance it, do your research and consider contacting an entertainment lawyer.
Read More: 101 Public Domain Story Prompts
Check out our Preparation Notes so you start your story off on the right track!
Ken Miyamoto has worked in the film industry for nearly two decades, most notably as a studio liaison for Sony Studios and then as a script reader and story analyst for Sony Pictures.
He has many studio meetings under his belt as a produced screenwriter, meeting with the likes of Sony, Dreamworks, Universal, Disney, and Warner Brothers, as well as many production and management companies. He has had a previous development deal with Lionsgate, as well as multiple writing assignments, including the produced miniseries BLACKOUT, starring Anne Heche, Sean Patrick Flanery, Billy Zane, James Brolin, Haylie Duff, Brian Bloom, Eric La Salle, and Bruce Boxleitner, the feature thriller HUNTER’S CREED, and many produced Lifetime thrillers. Follow Ken on Twitter @KenMovies and Instagram @KenMovies76.
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