Intellectual Property

Can I Use Someone's Copyrighted Materials Without Permission?

By Brian Farkas, Attorney
Are there situations in which you can use someone else's copyrighted work without permission?

Copyright law provides various exclusive rights to content creators. Copyright owners have the exclusive right to copy, reproduce, perform, and otherwise disseminate their work. Policymakers believe that granting these exclusive rights is wise, because it encourages creators to continue creating. After all, if you were a novelist and someone could come along and photocopy your book and sell it for personal profit, you might not bother to write another book.

Copyright holders can always give permission for their works to be used by third parties. So if you would like to use an illustrator's drawing on your blog, you can simply request that illustrator's permission (preferably in writing so that there is no confusion).

For many reasons, however, you may wish to use the copyrighted work of a creator without first obtaining formal permission. After all, obtaining a signed release can be time consuming and difficult. Fortunately, copyright law sets forth certain situations in which you can use copyrighted works without permission. While copyright law is complex, and you may wish to consult an attorney before proceeding with an unauthorized use of a copyrighted work, this primer will help you identify certain exceptions to the general prohibition on infringement.

Penalties for Violating U.S. Copyright Law

By way of background, copyright protection derives from the U.S. Constitution. Article I, Section 8, Clause 8 gives Congress power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Congress has carried out that power by enacting the U.S. Copyright Act of 1976, which says that the creator of a work—whether it be a book or a drawing or a sculpture—normally has a copyright in that work.

Copyright owners may register their works with the U.S. Copyright Office, the federal agency charged with the administration of copyrights in the United States. Registration permits creators to use the "©" logo on their work, as well as sue infringers in federal court. Ownership of a copyright comes with the exclusive rights to reproduce, perform, and distribute the copyrighted work. (See 17 U.S. Code § 106.)

What happens if someone violates those rights? Under 17 U.S.C. § 504, the infringer is liable for either "the copyright owner’s actual damages and any additional profits" or "statutory damages." The copyright owner could seek damages against the infringer for any profits "that are attributable to the infringement."

Moreover, where a court finds that the copyright infringement was committed "willfully," the copyright owner can seek statutory damages of up to $150,000.

How the Fair Use Exception Avoids Asking Permission

The most common exception to the prohibition on the use of copyrighted materials is through the doctrine of "fair use." This doctrine is described at length in 17 U.S.C. § 107, which contains the following important language:

"... [T]he fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work."

What does this language mean in practice? If someone infringes on a copyrighted work, that infringer may try to claim the defense of fair use—that is, admit to having used a copyrighted work without permission, but claim that the conduct nevertheless does not give rise to liability due to the doctrine of fair use. A court, hearing that defense, would need to evaluate the four factors outline in this provision of the Copyright Act to reach a determination on liability.

Imagine that you are a professor writing a journal article about a painter's work. In your article, you show a portion of a recent painting. This usage is likely protected under the fair use factors listed above. The purchase of the use is academic criticism, the amount of the use is relatively minimal, and you are unlikely to affect the market for the painting by reproducing a section of the image in an academic journal.

Exception for Use of Music Under a Compulsory License

Another special exception allows you to use certain types of music without the permission of the copyright holders. Normally, a single song is subject to at least two copyrights—a copyright over the lyrics and a copyright over the music. However, in some circumstances—known as compulsory licenses—a copyright owner’s permission is not required, provided that the user follows certain rules and pays fees set by law.

Such compulsory licenses are commonly used by satellite television providers, cable providers, webcasters, and music companies.

How does this work in practice? After a song has been recorded, any person or group is entitled to record and distribute the song without obtaining the copyright owner’s consent, provided they pay a fee and meet copyright law requirements. A notice must be sent to the copyright owner along with a fee set by the U.S. Copyright Office, known as the statutory fee or statutory rate. The fee for recordings (as of 2018) is 9.1 cents per song (or 1.75 cents per minute of playing time).

To verify the current rate, check the Copyright Office's guide to compulsory licenses. On the site, you can click “Mechanical Royalty Rate.” These rates are subject to change each year, so be sure to check the Copyright Office's current fee schedule. Note also that a recording artist is not required to use the compulsory license, and many recording artists seek permission directly from the song owner and negotiate for a lower rate.

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