Pin It
Blog
A Swift Lesson In Fair Use
November 8, 2017

mikesnyder2By Michael F. Snyder and Kelly L. Hoffman

Every so often, intellectual property law leaps from the backrooms of scientific exploration, labs ripe with technological advancement, or the worn desks of learned men and women, into social consciousness via an unwitting member of pop culture’s elite. Celebrities, the cult of personality that surrounds them, and the brands they establish, are still subject to the same rules of intellectual property law as less-known inventors, authors and developers. The nature of being in the public eye, and ownership of personal brands, can sometimes prove headache-inducing for the glitterati and their public relations teams.

Most recently, the blog PopFront published an article arguing that Taylor Swift’s reputation appeals to, and incites, certain groups of people. The blog’s author identifies aspects of Taylor Swift’s character and public persona that the blogger believes the pop icon should reconsider in light of this analysis.[1] In response, Swift engaged an attorney to draft a cease-and-desist letter, citing defamation. The attorney correctly assumed that any legal action taken by Swift would be of great public interest and included the following in his letter:

This is a confidential legal notice and is not for publication. Any publication, dissemination or broadcast of any portion of this letter will constitute a breach of confidence and a violation of Copyright Act. You are not authorized to publish this letter in whole or in part absent our express written authorization.[2]

The ACLU of Northern California took interest in the blog author’s case and issued a pointed response to the cease-and-desist letter. The ACLU asserts that the blog stated an opinion about Swift rather than asserting specific facts. Most notably, the ACLU indicates that legal threats are not confidential. Outlining the basic tenets of fair use, the ACLU response noted, “Attaching the letter to this one transforms it from a clumsy legal threat to suppress constitutionally protected speech into an exposé of that attempt in order to educate others who might receive these types of letters that they need not be intimidated. Although the text of the letter has not changed, the use has, which weighs in favor of fair use.”[3]

Copyright protection is intended to “promote the progress of science and useful arts.”  As one United States District Court has stated, copyright cannot be “used as a sword to suppress publication of embarrassing content rather than as a shield to protect intellectual property.” Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1205 (N.D. Cal. 2004).

One might question if a simple letter qualifies as copyrightable material. The subject matter of copyright protection is purposefully broad, in order to encompass and encourage a wide array of artistic works and expressions that can, in one way or another, contribute to the greater good of society.  For that reason, material subject to copyright protection is defined as “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated…”[4]  In layman’s terms, this means if you, as an original author, wrote it, drew it, sang it, etc., it is protected by copyright, so long as it has a modicum of originality.

General copyright protection as afforded by the Copyright Act, and referenced by Swift’s attorney, provides the owner of a copyrighted work the exclusive right to reproduce the work, to prepare derivative works based on the original work, and to distribute copies of the work to the public by sale or other transfer of ownership.[5] However, there are always exceptions to the rule, as Swift’s lawyer discovered when his wily disclaimer failed to keep him out of the woods.

The doctrine of “fair use” referenced by the ACLU is found in Section 107 of the Copyright Act, and is a defense to copyright infringement.  It states that reproduction of a work for purposes such as “criticism, comment, news reporting, teaching, scholarship or research, is not an infringement of copyright.”  To determine if a particular work qualifies for protection under the Fair Use doctrine, courts look to the following four factors:

  • Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes.
  • Nature of the copyrighted work
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • Effect of use upon the potential market for or value of the copyrighted work.[6]

Although courts evaluate fair use claims on a case-by-case basis, they are generally more likely to find that nonprofit educational uses and noncommercial uses are fair.  The ACLU highlights this important distinction in their response to Swift’s attorney, flatly laying out their intent to use the letter “to educate others who might receive these types of letters that they need not be intimidated.”

Recently, the United States District Court for the Southern District of New York provided a ruling of fair use for a YouTube video under similar circumstances of comment and criticism in Hosseinzadeh v. Klein. The video in question is a short skit about a character named “Bold Guy”.  A husband and wife blogger team (defendants, the Kleins) decided to post a “reaction video” to the five minute skit, interjecting portions of the original video to supplement their commentary.  After some back and forth via video takedowns on YouTube, both parties filed motions for summary judgement on a copyright infringement claim.  Using the previously mentioned four factor analysis, the court found that the use of clips from the original video was “fair use as a matter of law” and granted summary judgement to the defendant critics.  Since the reaction video was created purely for the purpose of critiquing the original work, the court reasoned “to comment and critique a work, clips of the original may be used.”  Furthermore, the use of the clips in the reaction video was “plainly necessary and reasonable” to create a critical commentary.[7]

In the same way that the Kleins intended to use the original video of “Bold Guy” as a springboard for commentary, the ACLU intended to use the cease-and-desist letter as a foundation for educating the public about the correct interpretation of copyright law: as a shield, and not a sword.

The copyright protection/fair use struggle often plays out on the internet, where reposting content is ubiquitous. While authors of original works can certainly try and limit how their work is used or reproduced by relying on copyright law, fair use creates an exception to a charge of infringement. An author’s work may face commentary or criticism, and the author may not be able to block such commentary or criticism if the use of their work is deemed “fair” applying the fair use doctrines.

[1] PopFront, “Swiftly to the Alt Right – Taylor Subtly Gets the Lower Case KKK in Formation.” (September 5, 2017), http://popfront.us/2017/09/swiftly-to-the-alt-right-taylor-subtly-get-the-lower-case-kkk-in-formation/

[2] William J. Bringgs, II, “[Redacted] Cease and Desist Letter to PopFront” (October 25, 2017), https://www.aclunc.org/docs/REDACTED_v1_Taylor_Swift_PopFront_letter.pdf

[3] ACLU of Northern California, “Re: Letter to Meghan Herning and PopFront dated October 25, 2017,” (November 6, 2017), http://www.aclunc.org/docs/Swift_letter_final.pdf

[4] 17 U.S.C. § 102

[5] 17 U.S.C. § 106

[6] 17 U.S.C. § 107

[7] Hosseinzadeh v. Klein No. 16-CV-3081 (S.D.N.Y. Aug. 23, 2017)