Mother May I … Dance? Copyright, Fair Use, and Dance

Editor’s note: This is the second article in a four-part series on the issues of Copyright in Dance. As a result of evolving media and technology platforms, these issues are become more and more important to understand and practice. This article focuses on the issues related to fair use. Other articles this season include discussions on Copyright Basics, Technology-Specific Copyright Issues, and Archiving for Dance.

By Julia R. Harris, Esq.

One of the rights the owner of copyright possesses is the right to reproduce or to authorize others to reproduce his or her work in copies. However, this right is subject to certain limitations found in sections of federal copyright law. One of the more important limitations is the doctrine of “fair use.” It is important to note that fair use is a defense to copyright infringement. Meaning, if one is prosecuted and/or sued for copyright infringement, the defendant may raise a defense (in this case the fair use doctrine) in an attempt to avoid liability. A defendant may use the defense to contest the accuracy of any allegation made against her in a proceeding. In addition, she may argue that, even if the allegations against her are true, she is nevertheless not liable.

Various purposes exist for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. A portion of the copyright act sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of 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;
4. The effect of the use upon the potential market for, or value of, the copyrighted work.

The distinction between fair use and infringement is sometimes unclear and not well defined. There is no black letter rule, or hard line as to a specific number of words, lines, or notes that may safely be taken without permission.

In addition, acknowledging the source of the copyrighted material does not substitute for obtaining permission. One of the rights the owner of copyright possesses is the right to reproduce or to authorize others to reproduce his or her work in copies. Permission means permission. It is not assumed, and it must be given. According to the Copyright Act, the owner of a copyright has the exclusive rights to authorize reproduction and use of the protected work. While the act does not specify that authorization must be in writing, in order to protect oneself, written authorization should be obtained. Do not be fooled into thinking that if you have acknowledged the copyright owner, you are off the hook.

If I am using the clip for educational purposes for my school/university recital or performance do I need to get permission?

Certain types of uses generally favor fair use, including teaching and scholarship. Other types of uses are usually not regarded as fair use, including situations where the user is engaged in commercial activity or is profiting from the use in some way. However, this in no way means that if the purpose for the use is for educational purposes, then fair use will be a valid defense. No factor is conclusive and the four factors are not exclusive. A court will weigh all the factors and would analyze the totality of the circumstances. Still, use of a copyrighted work for entertainment purposes is less likely to be deemed a fair use than educational purposes.

In addition, failure to give credit to the original author will often also weigh against fair use.

The nature of the work portion of the analysis refers to whether the protected work is creative and fiction-based, which are given greater protection than works of a factual or non-fiction nature. Similarly, non-published works are given greater protection than published works.

If I only use a portion or a few minutes of the music, like on YouTube, am I safe?

The fair use analysis also takes into account the amount and substantiality of the work used. This factor measures both the quantitative and qualitative nature of the portion of the work. The smaller the portion of a work used, the more likely the use is a fair use. For example, if a song’s run-time is four minutes, and only 15 seconds are used, the likelihood is that this factor would weigh in favor of fair use of the copyrighted work.

Conversely, use of a substantial portion of a work or the heart of a work is less likely to be considered fair use. For example, use of three minutes of a four-minute song is less likely to be fair use. It is important to note here that no hard and fast rule applies. The analysis takes into account the totality of the circumstances, and all factors are weighed.

What if I am doing a community performance to raise money for a good cause?

The Supreme Court said, “To negate fair use one need only show that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted works.” Use of a work that replaces the need for others to purchase or license the work, especially if the work is easily purchased or licensed, will weigh against fair use.

Try the following real-world scenario: A well-known dance company, Dance Company A, which runs a multi-million dollar school decides to use a Green Day song in a recital. The venue is Madison Square Garden, in the heart of New York. The dance company charges for tickets, directly profiting from the recital, as it is a for-profit organization. If Dance Company A fails to get explicit permission to use the Green Day song in the recital the Effect of Use on Potential Market factor of the fair use test would most likely work against the dance company. Moreover, the court could find Dance Company A’s actions to be in bad faith as it did not credit Green Day for the use of the song.

Conversely, a not-for-profit dance company, Dance Company B, decides to use a Jennifer Lopez song in a recital. The venue is a small, out-of-the-way community center. The dance company accepts donations, however there is no charge for tickets. All proceeds are used to keep the company running, and Dance Company B credits Ms. Lopez and the recording studio (the owner of the publishing rights) for the song. In addition, all of Dance Company B’s instructors are volunteers. If Dance Company B fails to get permission to use the Jennifer Lopez song in its recital the Effect of Use on Potential Market factor of the fair use test would most likely work in favor of fair use.

No factor is conclusive and the four factors are not exclusive, meaning, different situations in different cases may lead do different conclusions. A court will weigh all the factors, analyze the totality of the circumstances, and the outcome will depend on how the finder of fact balanced the conditions of a particular scenario. However, in real-world practice, the question a court will likely focus on will be was the original copyright holder harmed in any way? In other words, did the use of the copyright protected material adversely affect the potential market for the copyrighted work? If there was no real damage to the market for the work, it is unlikely a court would find infringement. Nonetheless, courts have ruled that absence of pecuniary damage does not require a finding of fair use.

The following are some real-world scenarios that look at the analysis as a whole.

• Plaintiff owns the copyright to a musical composition XYZ Network uses as background music during the introduction and conclusion of an episode of a one-hour TV series. The purpose of the series is to entertain mainly a teenage demographic, and circles around the drama of a private high school. The show airs on the XYZ Network and DVDs of the show are available for purchase. A court would likely find this use to not be a fair use and would follow an analysis similar to Purpose and Character of Use: This factor disfavored fair use. XYZ Network made a profit from the show and the purpose of the show was to entertain through fictional drama. DVDs of the show were available for purchase and sales were to make a profit for the network. Nature of Work: A court would likely find this factor to weigh slightly in plaintiff’s favor. As a musical composition, it is a creative work. Amount of Work Used: This factor would probably favor defendants as a small amount (seconds) of a four-minute song was used and those portions were not the heart of the song and were barely audible. Effect on Market: This factor would likely be a toss up and could go either way. A court could find the use of the small, barely audible portions of the copyrighted composition was neither a substitute for the original work nor in competition with the original work. On the other hand, the court could find that because XYZ made a profit from the show and the purpose of the show was to entertain, that this factor weighed against fair use.

Here’s another scenario:

• Plaintiff is a copyright owner of dance steps that are embedded in the sidewalk along Main Street in Big City. The work is entitled “Dance Steps on Main” and is comprised of 10 different dance patterns embedded along Main Street. Plaintiff wanted to see whether people would dance along the street if they were given the steps. Plaintiff researched the dances and learned the steps. Defendant is a photographer who took a picture of a model’s feet and legs while the model was dancing on a portion of plaintiff’s work. Defendant’s intent was to try out his new swing tilt camera lens. He intended the model’s feet and legs to be the focus of the photograph. In fact, the model’s feet cover large portions of the protected work, as she steps on the footprints. Plaintiff sues defendant for copyright infringement and brings a motion for summary judgment to dismiss defendant’s fair use affirmative defense.
Purpose and Character of Use: Here, Defendant is in a position to make a small profit from his photograph. The defendant’s conduct is relevant to the character of the use. Here, he could argue that he acted in good faith and that would be a question for the finder of fact to determine. Nature of Copyrighted Work: Defendant would likely argue that because plaintiff undertook extensive research, his dance steps are informational. However, even though plaintiff researched the steps, he might argue that he changed the steps to make it clear where to step next. Again, the finder of fact would determine the answer to this question.
Amount and Substantiality of the Portion Used: Here, defendant’s photo quantitatively used a small portion of the copyrighted work. The work includes 10 dance patterns and the photo included a portion of one. Plaintiff would likely argue that the amount used by defendant captured the essence of the work. In the end it is likely that a court would conclude that a reasonable person would conclude that the legs and shoes were the focal point of the photograph, rather than the dance steps. In addition, defendant should argue that the model’s feet largely cover the one step in his piece and that plaintiff’s work is unrecognizable from the photograph. This factor is a toss up and would heavily depend upon the facts of the case. The finder of fact would need to determine the outcome.
Effect of Use upon Potential Market: Some courts have declared that this is the single most important element of fair use. Although plaintiff did not sell photographs of his dance steps work and did not received a fee for licenses he has given, the past conduct of the copyright holder is not the proper focus of this inquiry. Courts generally rule that unauthorized use of a protected work sold for profit could have an adverse market effect on the original and derivative works.

As is evident, no single factor is conclusive. A court will weigh all the factors and again, some courts may analyze an issue one way, while another jurisdiction will analyze the factors completely differently. To be on the safe side, always get permission from the copyright owner before using copyrighted material. Also, be advised that the U.S. Copyright Office cannot give permission, only the owner of the copyright can authorize use of his or her protected work.

If it is impractical to obtain permission, avoid use of copyrighted material unless the doctrine of fair use would clearly apply to the situation. The Copyright Office cannot determine if a certain use may be considered fair. When in doubt, it is advisable to consult an attorney.

Julia Harris is currently an associate at Kleinman and Associates in Encino, Calif. She graduated in May 2010, and was admitted to the California State Bar in December 2010. While in law school, Harris was a member of the Intellectual Property Law Association, Moot Court Board, and served as the Vice Magister of Golden Gate University’s chapter of Phi Delta Phi. Previously, Ms. Harris interned for the assistant general counsel of Paramount Pictures in 2008, and served as a law clerk at Berman Entertainment and Technology Law in San Francisco.

Before entering law school, Harris spent two years as an associate producer and coordinator in entertainment marketing. She associate produced marketing featurettes for Cars, “Desperate Housewives,” “Grey’s Anatomy,” and “Scrubs.” She also associate produced The History of New Line Cinema, a feature-length documentary, as well as Mattel and Intel commercials. Harris received a B.A., cum laude, in English from the University of Hawaii, Manoa in 2005 and a J.D., from Golden Gate University of Law in 2010. She serves as the managing editor of M/E Insights, and is a member of the Beverly Hills Bar Association, the Los Angeles Bar Association, and an associate of the Los Angeles Copyright Society.