The Pros And Cons Of Fair Use

Fair Use Defense

Fair use is a guideline in US law that authorizes restricted use of copyrighted material without having to get permission from the owner. Fair use is a limitation to copyright intended to balance the interests of copyright holders with the public interest. The fair use defense is eminent in defending non-commercial memes. Critics believe that, “fair use is a robust doctrine that ably acts as one of the “built-in First Amendment accommodations of the Copyright Act.” (O’Connor) The Fair Use doctrine affirms the users angle in copyright law. The doctrine is composed of four prongs that are use to determine if content falls under the fair use defense. The prong are as follows:

1. The purpose and character of the use, including

Regulating the commercial use of work protects the owner of original work from being exploited. In 2012 Warner Brother and 5th Cell Media attempted to take advantage of the vague copyright precedents for internet memes. In 2013, the creators of the commonly known memes Keyboard Cat and Nyan Cat filed a copyright and trademark infringement lawsuit against Warner Bros. and 5th Cell Media. The success of the memes prompted their creators to register for trademark protection. However, Warner Bros and 5th Cell of included, without any licenses or authorizations from the creators, the Keyboard Cat character in their original Scribblenauts video-games. The court concluded in favor of the plaintiffs, and Warner Brother and 5th Cell Media had to pay up and stop selling any the game. The emergence of this case, illuminates the importance of regulations of commercial usage of memes, if there had been some policy in place the case would not have been necessary. Adapting Stacey Lantagne Specturm of Use, a policy is proposed. Lantagne starts out by addressing the spectrum of meme usage and identifying two types, static and mutating memes. She defines static memes as, “Static memes are those uses of visual images that are mere reproductions of an image without altering it anyway or imbuing it with any new meaning.” And mutating meme as, “Mutating memes are those uses of visual images that have morphed beyond their origin to act as their own form of communicative shorthand.” On one side of the spectrum would be static memes and the other side would be mutating memes. Using this spectrum as a guideline to identify the transformation of the original work will guide the amount percentage of monetary value the original owner will get from the transformative commercial use. The spectrum of use will serve as 50% of the total percent. An