On August 16, 2023, a federal trial court in Texas ruled on a copyright matter involving a factual video that went viral on social media. At the motion to dismiss stage, the issue the court faced was whether the affirmative defense of fair use applied to a defendant who used the video to promote his business. The court ruled that fair use did not apply, and denied the motion. Viral DRM, LLC v. Frank Kent Country, LLC, Civ. No. 3:23-CV-0250-D (N.D. Tex. Aug. 16, 2023) (2023 WL 5284844).
This matter began when the plaintiff, a company in the business of licensing videos, was assigned the rights to a video depicting a pickup truck driving through a high-intensity tornado. The video was very popular on social media. The defendant, an automobile dealer, was one of many who shared the video on social media. Unlike many other posts, however, the defendant superimposed music from the truck’s manufacturer and included its advertising slogan. The defendant sold this brand of vehicle.
The plaintiff claimed that the defendant infringed its registered copyright in the video. The defendant argued the affirmative defense of fair use: that its use of the factual video was “fair use” under the copyright law.
The copyright law lists four factors for courts to consider when determining whether fair use precludes a copyright infringement claim:
(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.
17 U.S.C. § 107.
Although these four factors are not exclusive, courts frequently emphasize the first and fourth factors. The court reviewed all four factors.
With respect to the first factor, the court found that the defendant’s use was commercial (not personal or educational), and that the defendant stood to profit from use of the video without paying the customary fee. This important first factor favored the plaintiff, and weighed against fair use.
The second factor, the nature of the work, focused on the factual nature of the video, rather than a fictional work. This second factor favored the defendant, and weighed in favor of fair use.
The third factor, amount and substantiality of the work used by the defendant, was 100%, so that factor favored the plaintiff and weighed against fair use.
With respect to the important fourth factor, effect on the potential market, the court found that widespread use of the video could undercut the plaintiff’s licensing model. “Moreover, the mere fact that the Video has been disseminated widely on social media does not undermine this conclusion: many wrongs—that is, many infringing uses of the Video—do not make Frank Kent’s allegedly infringing use permissible.”
Therefore, because only one of the four factors favored the defendant, the court ruled in favor of the plaintiff and found that fair use did not apply.
Using someone else’s video without permission invites trouble. And it is no defense that many others are making copies too. Keep in mind that statutory damages are available in copyright cases and can reach $150,000 per infringed work if the infringement is “willful.” 17 U.S.C. § 504.