In the age of social media, video content has never been more widely available. What used to demand the planning and labor of a film crew and TV/theatrical distribution can now be spontaneously shot on someone’s phone and released on Instagram. Perhaps the casual nature of modern video footage gives the illusion that one can shrug off copyright law – but it is just that: an illusion. Video creator copyright ownership remains firmly intact, even if the media has changed.
We saw this play out in a recent court ruling over a video that a truck dealership shared on social media – without the owner of the video’s express permission.
Like a Rock
Frank Kent, an auto dealership in Corsicana, TX, shared videographer Ronald Emfinger’s video of a Chevrolet Silverado truck driving through a tornado – in fact, the dealership was one of many who shared the video, as it was a social media sensation.
What made the difference in Frank Kent’s case? The dealership shared it to their Facebook page with modified audio from an old Chevrolet commercial. They also included the classic 90s/2000s Chevrolet slogan “Like a Rock.” This made the share feel more like a commercial than a simple social media content boost – and Viral, the company which eventually licensed Emfinger’s video, noticed.
Viral sued Frank Kent for using the video without licensing it. Frank Kent asked the court to dismiss the infringement case on the grounds of fair use. Fair use requires the court to evaluate and weigh four factors. Did Frank Kent’s fair use argument measure up?
Fair Use Factor 1: Purpose and Character of the Use
In educational and journalistic instances, it is often acceptable to use materials without a license. This is why you will see “For Educational Purposes Only” printed on some sheet music, for example, so that music instructors are not burdened to obtain a license just to teach their students a song. Parody is another common occurrence of fair use.
Frank Kent argued that their video share was informational and parody. However, the court saw the construction of a commercial-like video as a clear indicator that the share was meant for commercial purposes. Strike one.
Fair Use Factor 2: Nature of the Copyrighted Work
“Nature of the copyrighted work” basically asks the question: Is this work factual or fictional? Since fictional work is more likely to reflect the inventiveness of its creator, it is likely to receive stronger copyright protection. Sharing a factual piece of work without a license could be interpreted as informational. The court acknowledged that this favored Frank Kent’s assertion.
Fair Use Factor 3: Amount and Substantiality of the Portion of Work Used
“Amount” may read as fairly obvious: how much of the copyrighted work was used without permission? But “substantiality” is where things become interesting. The courts assesses this aspect to weigh the importance of what was used. For example, if a small amount of copyrighted text goes into another work, but that text conveys the essential meaning of the original work, it can be weighed just as heavily as if the infringer used the full work.
The Court did not have to dive into these nuances. Frank Kent used the majority of the video, which counted against the dealership in the case.
Fair Use Factor 4: Effect on the Market
Since copyright ownership empowers one to profit from one’s ideas, this factor gets into the practical consequences of the infringement. Did the unlicensed usage prevent actual licensed usage? Could it have prevented licensing?
As you may imagine, it can be difficult to decide something so hypothetical. But the court made an attempt to extrapolate how the Frank Kent share affected Viral’s market to sell the video commercially. Because Frank Kent demonstrated how other users could use sharing and editing functions on apps to display the video for free to suit their own commercial purposes – the court ruled that Frank Kent did indeed affect the video’s market value negatively.
Hit the Road, Frank Kent
For all of these reasons, the court ruled in favor of Viral and against Frank Kent’s motion to dismiss the lawsuit. It is a cautionary tale to social media managers for companies everywhere: Just because something can be done in a few swipes of your thumb does not mean it is legal under intellectual property law.