Social media, streaming platforms, and digital publishing have made creative works easier to access, share, and repurpose. For creators, that convenience comes with two serious legal questions: When does using someone else’s work become copyright infringement? And how can I avoid copyright infringement litigation?
Codified at Title 17 of the United States Code, American copyright provides a robust and comprehensive framework that protects creators while also recognizing key limitations. Under 17 USC § 106, a copyright owner has the exclusive right to reproduce, prepare derivatives, and distribute copies for sale of copyrighted works. For literary, musical, dramatic, choreographic, motion picture, or other audiovisual works, the copyright owner also has the exclusive right to perform and display the work publicly. Those rights can last a long time. In many cases, copyright protection extends for the life of the author plus 70 years under 17 U.S.C. § 302.
These rights are not without teeth, as US copyright law provides for severe penalties for copyright infringement. These penalties consist of actual damages or statutory damages. Under 17 USC § 504(b), a copyright holder is entitled to their actual and real loss or injury resulting from a violation or infringement. For example, if a musician whose song is uploaded and sold illegally online, the musician is entitled to lost sales or streaming revenue.
On the other hand, a copyright holder may choose to receive statutory damages instead. Under 17 USC § 504(c), the statutory penalties may range from $750 to $30,000 per infringement, and may increase to as much as $150,000 for willful infringement. Willful infringement may also expose an infringer to criminal penalties under 17 U.S.C. § 506 and 18 U.S.C. § 2319.
The Digital Millennium Copyright Act also reshaped copyright enforcement for the internet era by creating notice-and-takedown procedures for online service providers. This is the mechanism through which copyright owners can request a takedown of YouTube videos that use their work.
But U.S. copyright law recognizes the need to promote the progress of science and useful arts. In 1976, Congress codified the long-standing judicial doctrine of fair use into law as 17 USC § 107.
Under 17 U.S.C. § 107, fair use may permit limited use of copyrighted material for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Courts evaluate fair use by considering several factors, including the purpose and character of the use, whether the use is commercial or nonprofit educational, the nature of the copyrighted work, the amount used, and the effect of the use on the potential market for the original work.
These factors are not applied mechanically, and the list is not exhaustive. The Sixth Circuit has recognized that courts consider the statutory factors in context, including whether the challenged use is commercial. NRA of Am. v. Handgun Control Fed’n of Ohio, 15 F.3d 559, 561 (6th Cir. 1994).
A key question is whether the new use is transformative, rather than merely substituting for the original.. The Supreme Court has described “transformative” as adding something new and important to a copyrighted work. Google LLC v. Oracle Am., Inc., 593 U.S. 1, 29 (2021). For example, the Supreme Court highlighted that the use of an advertising logo is fair use if it is used to make a comment about consumerism. Id. Further, parodies are transformative because they comment and criticize the original even if it mimics the original. Id. at 30.
Because copyright disputes are highly fact-specific, individuals and businesses should carefully evaluate their use of copyrighted material before copying, reposting, adapting, distributing, or monetizing another’s work. Taking proactive steps, such as obtaining permission, securing an appropriate license, or conducting a fair use analysis, can help reduce the risk of infringement claims. Particular attention should be given to whether the use aligns with one or more of the purposes identified in 17 U.S.C. § 107, such as criticism, comment, news reporting, teaching, scholarship, or research, and whether the use is sufficiently transformative to add new meaning, purpose, or character to the original work. A thoughtful assessment of these factors before publication or distribution can be an important safeguard against costly copyright litigation.
Before you publish, share, or monetize content containing third-party works, consider making sure your assets are legally secure. Contact Jose Mendez Valdez and the attorneys at Cavitch Familo & Durkin to schedule a comprehensive fair use analysis and help minimize the risk of costly copyright litigation.