Fair Use Can Sometimes Be Unfair

*** The writing does not, and is not intended to, constitute legal advice by any means***

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VOGUE ITALIA DECEMBER 2007 FEATURING LARA STONE

Let's say you, a fashion designer, own a valid copyright in a patterned print you created after months of sleepless nights. (See my previous post to learn how to receive copyright protection.) You feel emotionally attached to the print. One day, you found out that someone, without obtaining a license from you, was selling dresses incorporating your print online. First, you contacted the infringer and sent him or her a polite cease-and-desist letter. This course of action did not result in an amicable resolution, so you brought a copyright infringement claim before a judge to be compensated for damages. However, the judge, despite acknowledging the fact of infringement, did not hold the infringer liable. What happened? The answer: fair use.

Fair use is a complete defense to infringement liability, complete in the sense that an infringer is shielded from liability and can just walk away. The defense is mostly raised in the context of writings, drawings or illustrations, and architectural works. The alleged infringer-defendant argues that the use of a copyrighted material was intended to "comment or critique" or "parody" the copyrighted work, thereby highlighting the societal and cultural values of the infringing work. As noted below, the fair use defense has been rarely successful in commercial contexts, although such trend is changing. The hypothetical is an unlikely scenario in terms of its no-liability decision, but the act of copying is common (maybe, common is an understatement) in the fashion industry. Plus, you never know what the result is until you receive it. Therefore, it never hurts to know what the law is to better protect your work.

When a judge evaluates the validity of any fair use defense, her or she looks at the following four factors: 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion taken, and 4) the effect of the use upon the potential (emphasis mine) market. The judge has the ultimate discretion in deciding how much weight to assign to each factor. I will again use the hypothetical above to explain how each factor works in the fair use analysis. I slightly changed the order from the least important factor to the most important one. This is my personal opinion, so please be aware.

Factor 2) The Nature of the Copyrighted Work
The patterned print is a creative work of art. However, modern courts rarely consider this factor as they believe that they are ill-equipped to evaluate the creative merits of an artistic work.

Factor 3) The Amount and Substantiality of the Portion Taken
If the infringer copied the whole pattern, this factor works to the full disadvantage of the infringer. However, modern courts are moving away from conducing the quantitative analysis and shifting to the qualitative one. If the portion taken figures centrally in the copyrighted work, the court would find that the infringer copied the substantial portion.

Factor 1) The Purpose and Character of the Use
The fair use defense was initially carved out as an exception to the liability imposition rule in order to provide very limited protections to infringing works that serve societal and cultural values. So, it used to be the case that the defense almost invariably failed if the use was commercial. However, courts nowadays do not reject the fair use defense right away just because the use is mainly commercial. Instead, they look at how transformative the infringing work is from the copyrighted original to determine whether the infringement can qualify as fair use.

Factor 4) The Effect of the Use upon the Potential Market
This factor would turn out to be most decisive. If law is ultimately about justice, it does not want those with bad intentions to pocket ill-gotten profits by flagrantly stealing others creators' sweat-infused works. If it can be proven that the infringer's selling of dresses with your print on them has a potentially (it doesn't even have to be actual!) negative effect on the market of your dresses, the fair use defense would fail.

The defendant would probably counter that, given the low prices of his or her knock-offs, they serve different customers and are in the different market for the purpose of this factor. The court would be very unreceptive to such characterization. That's why fast fashion brands such as Zara routinely get sued and pay fines (not hefty enough, I guess, since they keep copying.)

P.S.) I basked in the sun for about 30 minutes today, and it was so refreshing. Just remember to wear a mask and maintain some distance for yourself, but most importantly, for others!