Bear in mind that I am not talking about a Sec. 512(f) violation. I'm talking about simply determining fair use in the first instance during a copyright infringement lawsuit.
Lawyers often say that fair use is one of the most complicated parts of copyright law. But how can it possibly be so complicated? The only facts that mean anything can usually be determined simply by reviewing the allegedly infringing work.
For example, imagine if there's a 16:00 long video review of an 80 minute movie. Of that 16 minutes, 15:00 is comprised of the reviewer providing his own original commentary and criticism of the movie in question, while using still images from the movie as B-roll footage. Meanwhile, at 5 points in the video, the reviewer uses clips from the movie of 12 seconds each to illustrate the points he's critiquing. When using still images, he uses a grand total of 300 different still images, so at 60fps, that effectively amounts to a grand total of 5 seconds of footage.
This means that 93.75% of the review was original commentary, while using only 1.354% of the movie's total footage. I would argue that this would squarely fit the third factor of fair use (the amount and substantiality of the portion used).
Do you really need months upon months of discovery to determine the aforementioned facts? I would opine that you could verify those facts in only the sixteen minutes it takes you to give the video in question a single viewing.
The facts surrounding all four fair use factors can similarly be identified just by reviewing the allegedly infringing work in question. Is it transformative? Well, in the 15 minutes of original commentary, does the reviewer actually talk about the movie's themes, characters, and plot? Does he offer opinions about them? If so, then it's transformative.
It honestly seems like the only time there should be any significant dispute regarding fair use is whether the alleged infringer had provided enough criticism or commentary. Were twelve of those fifteen minutes merely talking about the reviewers' personal life, so it was basically a 4 minute review that was 25% copying footage, instead of a 16 minute review that was 6.25% copying? If so, is that enough criticism to justify fair use?
Ok, I can understand how reasonable minds may differ on whether the allegedly infringing work did enough to constitute fair use.
But it seems like such a dispute could be resolved simply be both parties submitting motions for summary judgment with accompanying briefs, each telling their side of the story, and then letting the judge decide.
But as far as the objective facts regarding the way the copyrighted material was used are concerned, what could possibly require tens of thousands of dollars of litigation?
Lawyers often say that fair use is one of the most complicated parts of copyright law. But how can it possibly be so complicated? The only facts that mean anything can usually be determined simply by reviewing the allegedly infringing work.
For example, imagine if there's a 16:00 long video review of an 80 minute movie. Of that 16 minutes, 15:00 is comprised of the reviewer providing his own original commentary and criticism of the movie in question, while using still images from the movie as B-roll footage. Meanwhile, at 5 points in the video, the reviewer uses clips from the movie of 12 seconds each to illustrate the points he's critiquing. When using still images, he uses a grand total of 300 different still images, so at 60fps, that effectively amounts to a grand total of 5 seconds of footage.
This means that 93.75% of the review was original commentary, while using only 1.354% of the movie's total footage. I would argue that this would squarely fit the third factor of fair use (the amount and substantiality of the portion used).
Do you really need months upon months of discovery to determine the aforementioned facts? I would opine that you could verify those facts in only the sixteen minutes it takes you to give the video in question a single viewing.
The facts surrounding all four fair use factors can similarly be identified just by reviewing the allegedly infringing work in question. Is it transformative? Well, in the 15 minutes of original commentary, does the reviewer actually talk about the movie's themes, characters, and plot? Does he offer opinions about them? If so, then it's transformative.
It honestly seems like the only time there should be any significant dispute regarding fair use is whether the alleged infringer had provided enough criticism or commentary. Were twelve of those fifteen minutes merely talking about the reviewers' personal life, so it was basically a 4 minute review that was 25% copying footage, instead of a 16 minute review that was 6.25% copying? If so, is that enough criticism to justify fair use?
Ok, I can understand how reasonable minds may differ on whether the allegedly infringing work did enough to constitute fair use.
But it seems like such a dispute could be resolved simply be both parties submitting motions for summary judgment with accompanying briefs, each telling their side of the story, and then letting the judge decide.
But as far as the objective facts regarding the way the copyrighted material was used are concerned, what could possibly require tens of thousands of dollars of litigation?