Fairly Useful, Part Deux: Why It's Always Better To Ask Permission Than Beg Forgiveness

fair-use-reminder[It's the summer!  Which means all the movies in theaters are sequels, so why should this blog be any different?  Last week I wrote a follow-up to my Death of the Unpaid Internship article and it was a colossal hit.  Can lightning strike twice?  I shall endeavor to find out.]

Several months ago I wrote a post called Fairly Useful: Why Fair Use Is A Simple, But Dangerous Legal Doctrine.  The purpose of that post was to provide a bird's eye view of Fair Use, a concept that many artists know about but don't generally understand.  In that article, I said that Fair Use is "extraordinarily dangerous" when misunderstood and that if you're going to use someone else's copyrighted work, you're better off asking for permission.  Whereas that article was all about discussing the elements that make up a fair use claim, this article will elaborate on why asking permission is better than begging forgiveness.  And, as I often do, I will illustrate why with a story from my early producing career.

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I was on the second week of a location shoot somewhere near Bowdoin, Maine and I was looking for an eye-catching outdoor backdrop in front of which to film a conversation between our on-air personalities.  We drove around for what felt like hours looking for a suitable location and discovered that if there's anything  Maine lacks in multitudes, it's eye-popping outdoor backdrops.  Fortunately, we found our way to a quasi-civilized area and parked in front of a deli with a colorful and swirly logo.  Since we weren't going to film inside the deli, I decided not to ask for permission to film the logo.  Here's why:

  1. We weren't bothering the deli owner or his customers.
  2. We weren't on the deli owner's property.
  3. The logo, while conspicuous, was in the background.
  4. We would be there for a total of five minutes and the scene, when edited, would last ten seconds.
  5. The show's format required a lot of driving, which meant that much of the filming took place inside a car... I was desperate to break up that monotony.

These were all bad reasons.  It didn't matter that we weren't in anyone's way, that we weren't on private property, or even that we'd be gone before the traffic light changed from yellow to red.  On the off-chance the owner saw his logo on TV, we would be, in the words of our in-house counsel, "royally buttf***ed."  He could sue us for copyright infringement, and while the issue was in dispute, we wouldn't be able to use the scene.  Either the show would be pulled from all future time slots - causing a significant problem for the network since ads are sold weeks and months in advance - or we would have to reshoot the scene and cut it into the show, which is the kind of expense that can only be made after firing an unwitting associate producer and using his salary to cover the cost of the reshoot.

Which isn't to say we would lose a lawsuit if the owner decided to sue.  This was a straightforward a case of fair use because it met all the requirements under the law.

  1. The use was transformative because it didn't comment on the logo or the deli.  It was simply a tacit acknowledgment that the deli existed.
  2. The use was non-commercial (even though the show was made for commercial reasons, that profit didn't arise due to use of the logo).
  3. The use was minimal since it was in the background of a scene lasting no more than ten seconds.
  4. The use did not negatively affect the market for the deli - if anything, I figured it was a bit of free advertising.

But that didn't matter.  As our lawyer explained to me when I returned from the shoot, getting sued and then winning (by successfully defending on a fair use defense) was still a loss because the amount of time and money required to defend ourselves would never be recouped.  If I had asked for permission, the best case scenario was that we would be allowed to film the logo.  The worst case scenario: the owner would either charge us a licensing fee, or say no outright and we would have to film somewhere else.  Either way would have been easier and cheaper than plodding through arbitration hearings or waiting to see if a judge would buy our fair use argument.

Lucky for me, history didn't pan out that way.  The owner was alerted to the sight of several video cameras milling around near his property and came to investigate the hubbub.  Even though I was a lowly associate producer, I was the only one in charge at that moment, so I took full responsibility (which mostly looked like groveling and blaming the cameraman).  Ultimately, the owner approved of what we were doing and signed a release for the logo.

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For artists, it's tempting to throw the dice and assume that you won't be sued.  Suing for copyright infringement is damn hard, and requires registration with the Copyright Office.  And many of those that threaten to sue are either bluffing or have dramatically underestimated the cost of following that threat all the way through.  But as a lawyer, I can tell you that despite all that stuff being true, taking the risk is still not worth it.  For every empty threat that gets made, I can point you towards a legitimate copyright lawsuit.   And when the time comes for you to actually beg forgiveness, it never works - especially with corporations.

You should always always always ask for permission because even if the copyright owner says no, that loss is nothing compared to what you'll lose if you wind up defending yourself in court.  Because even if you successfully make a fair use argument, it's still a loss.  As an artrepreneur, your money is time - and that should be spent making and selling your work, not defending yourself in federal court.

So the next time you find yourself wanting to use someone else's copyright work in your own art, ask them for permission.  The worst thing they will say is "no."  Compared to a years-long legal battle, that's not such a bad thing.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA