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Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.

This post is about understanding the risk associated with relying on fair use. A copyright boils down to a “bundle of rights,” and when those rights are violated, it’s said that the copyright is “infringed.” A common defense to infringement is fair use, and I can’t possibly count the number of times someone contemplating making a copy has said, “But this is fair use,” often coupled with the dreaded, “No infringement intended” (as if that’s a proper defense). Everyone seems to think any copying they do is fair use. Well, it’s not me you have to convince.

Fair use is an “affirmative defense,” which creates two problems for you. First, to raise that defense, you’re often admitting that you’re liable (or guilty in a criminal case) of the underlying infringement. Boom! You just admitted you’re the bad guy. As a result, you run into your second problem: The burden of proof now shifts to you to prove that your offense was justified, and even in a criminal case, that shift doesn’t violate the Constitutionally-protected presumption of innocence. Remember, you already admitted you did a bad thing; you’re just trying to say, “Hey, let this slide, okay?”

If we were to apply this to any other crime or tort (civil wrong), it would sound crazy. For example, assuming you’re not someone who enjoys murder, which position feels safer?

1. “I didn’t kill the guy.”
2. “I killed the guy — shot him right between the eyes — but I felt threatened.”

Even assuming the truth of #2, #1 seems infinitely preferable (if also true). It’s a better position in which to find yourself. Nevertheless, people tend to infringe first and justify it second, seeing fair use as a quick and easy bailout. Despite a wealth of case law helping to define fair use, it’s still a vague concept, relying not on “bright line” rule that clearly defines it, but instead relying on a series of factors (discussed on my other blog) that have to be applied to your specific facts. You can’t predict the outcome of your case based on the outcome of another case with an entirely different, complex set of facts. If you miss one critical fact in your analysis, your defense crumbles. Moreover, successfully predicting the outcome of your trial doesn’t guarantee that you’ve successfully predicted the outcome of an appeal of that decision. The copyright holder knows that and is certain to appeal. That will cost you even more money.

Going back to the analogy, you shouldn’t go around bad neighborhoods simply because you suspect that, if you have to shoot someone, you’re likely to be shooting a menacing person, so you won’t go to jail. Similarly, you shouldn’t dive head first into infringement unless you’re willing to accept the consequences, whether they’re a finding of guilt/liability or simply a ton of legal fees.

Fair use is a well-settled defense to infringement, but relying on it is quite risky. If you don’t follow my advice to seek counsel when filing a trademark application, fine, but you better follow that advice if you’re planning to infringe a copyright that’s sure to be brought to the copyright holder’s attention.

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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.