Copyright protections allow the owner the ability to hold a party that violates the copyright accountable for the violation. But when does the use of a copyrighted material rise to the level of a violation? That was the question discussed in a recent a case.
The case is a typical David v. Goliath story. In Divine Dharma Meditation International, et al. vs Institute of Latent Energy Studies, a large, worldwide organization accused a small nonprofit of violating its copyright when it displayed copyrighted artwork of a historical figure, Dasira Narada. The small nonprofit countered that its use of the artwork did not rise to a true violation and instead qualified as fair use of the artwork.
What is fair use? The United States Copyright Office explains fair use is a legal doctrine used to promote the freedom of expression. It allows for the unlicensed use of copyrighted works in certain situations. Qualifying examples can include news reporting, research and teaching situations.
When does an accused’s use of a copyright protected material fit within the fair use doctrine? A court will generally take four factors into consideration when analyzing fair use. These factors are:
- Purpose and character of the use. The Copyright Office notes courts are more likely to find nonprofit, educational and noncommercial uses are not in violation of copyright protections.
- Nature of the copyrighted work. The court will also review whether or not the use encourages creative expression.
- Amount and substantiality of the taken work. Courts review the quantity and quality of the used portion of the copyrighted work.
- Effect of the use upon the potential market. The court also looks into the impact of the use on the original copyright owner’s market.
In this case, our defensive strategy successfully focused on the fact the artwork was not used for a commercial purpose. As such, the accused was able to establish their use did not impact the plaintiff’s market for the copyrighted work.
It is important to note fair use is more than just a defense. This legal theory established a right for this small, nonprofit meditation group to display the artwork of their founder.
A note about defensive strategies and choosing the right legal counsel
The plaintiffs’ conduct can’t be characterized as "tricks," but the plaintiffs' counsel in this case was significantly older. Law is a profession where age can often be seen and used as an advantage — there are times when you will be looked down on, simply because you are viewed as a younger attorney. After all, with age comes experience.
As younger attorneys and advocates for our client, we may not have the years of "experience" the opposing counsel has to offer — so that 1) we can make sure we are asking the appropriate questions, and organizing the series of facts in a manner the jury can understand; 2) conducting a detailed study of the law and facts, so that we can use the fair use defense to our client's utmost advantage; and 3) being respectful in our trial conduct. Each attorney has their style, and it's not to say one is better than the other, but we are always mindful in how we speak to opposing counsel, the judge, and witnesses on the stand, whether or not they are on our side. While you need to ask the hard questions in cross examination, and you need to advocate for your client, we always try to be respectful to the other party, because the jury is watching. Being rude or needlessly antagonizing the other party on the stand does nothing to further your case.