By Gary Schuster, Esq.

If an artist, producer or publisher wants to use a copyrighted work, or a portion of it, in their own work, they need the permission of the copyright owner. That permission takes the form of a written license agreement, and commonly, money is demanded for that license. Some examples of using a copyrighted work are:

  • A film that includes music or clips from other films
  • A sound recording that incorporates “samples” of other music A work of visual art that includes “found” pictures or drawings
  • A book or article that includes excerpts from other books or articles

It is quite common for copyright owners to refuse to grant a license at any price. They may disapprove of the product or its message. They may have previously agreed, in another license, to limit future licensing. They may fear competition in the marketplace. Or they may not want to appear to be “selling out” and commercializing their art.

However, largely because of the First Amendment to the Constitution, there is an exception to the copyright monopoly called fair use. Fair use permits use of a copyrighted work, without the consent of the copyright owner, for such purposes as education, commentary and criticism. Avoiding licensing can bring enormous savings of both time and money. But fair use does not mean unrestricted use. Fair use is limited to certain circumstances and kinds of use. A license may be preferred even where fair use may be available.

Traditionally there has been a 4-part test to determine whether an unlicensed use or taking of a copyrighted work qualifies for fair use:

1. The purpose and character of the use (i.e., commercial vs. educational)
2. The nature of the copyrighted work (i.e., imaginative vs. factual)
3. The proportion of the work taken in relation to its entirety (small vs. large)
4. The effect of the taking on the market for the original (small vs. large)

All these factors are weighed to determine the outcome. Even though the 4-part test has been used for many years it can be difficult to apply. The uncertainty and risk this creates inhibits people from incorporating the works of others into their own work. This results in fewer new works being created and distributed, frustrating the original intent of copyright which, as it says in the Constitution, is “to promote the progress of science and useful arts”.

Lately, a new and simpler way has arisen for determining fair use. It has been called the “artifact” test, but it could also be called the “feel good” test. It does not replace the 4-part test, but has proved to be helpful in applying it.

Imagine you are producing a documentary film on the history of rock music. You want to illustrate “glam rock”, the outrageous style exemplified by the likes of David Bowie, T.Rex, Roxy Music and Gary Glitter. You find a film of a performance of David Bowie in his Ziggy Stardust days. To use an excerpt, you will need licenses from David Bowie, from the other people appearing on-screen, from the owner of the film, and from the owner of the song being performed. You wonder whether you can find all these people, what license fees they will charge, and if they will give permission at all. So you consider how to qualify for fair use.

The rule comes down to this: you cannot use an excerpt so substantial that your viewer is entertained, i.e., feels good. You can only use an “artifact”, which is to say, the minimum amount necessary to prove the point, demonstrate the style, and provide education. If your viewers start tapping their feet, smiling and dancing, you have gone too far. In the language of the 4-part test, you are entertaining, not educating. You are using too large a proportion. You are usurping the market for the original. You are failing the 4-part test.

The above example is from film, but the test can also be applied to music, text, and visual arts. Suppose you create a work of visual art that incorporates a 1967 Grateful Dead poster. You reproduce the entire poster, but it takes up only about 5% of your entire work. That is likely fair use. On the other hand, if the Grateful Dead poster took up 85% of your work, that would likely not be fair use. The pleasure experienced by your viewer comes primarily from that poster, not your 15%.

The challenge and choice for artists, producers and publishers is this: will a mere “artifact” be sufficient for their purposes? Do they really want the excerpt only for its educational value? If instead they want to re-create and transmit the thrill of the original, then licensing will be required.

The choice may be difficult, but at least, with the artifact test, artists, producers and publishers can feel good about their licensing decisions.