Fair Use or Foul Play? Analysing the Gray Areas of Copyright Infringement

Fair Use or Foul Play? Analysing the Gray Areas of Copyright Infringement

In the realm of creative pursuits, the intersection of innovation and legal boundaries gives rise to a compelling debate. This article delves into the ambiguous spaces of copyright infringement, dissecting the grey areas that challenge the delicate balance between creative freedom and intellectual property protection. As we navigate the landscapes of fair use, we explore the complexities that surround this issue, shedding light on the blurred boundaries that often leave content creators and consumers pondering the ethical and legal dimensions of their creative endeavours.

Understanding Fair Use

At the heart of this lies the doctrine of fair use—an essential concept designed to strike a delicate balance between protecting the rights of copyright holders and fostering a culture of creativity and innovation. Fair use is a legal provision that permits the use of copyrighted material under specific circumstances, allowing for the creation of new works without the need for explicit permission or financial compensation to the original copyright owner.

The rationale behind fair use is rooted in the recognition that not every utilisation of copyrighted works should be deemed infringement. Instead, the doctrine aims to harmonise the interests of creators and the broader public, acknowledging the importance of access to, and the transformative use of, creative content.

Factors Influencing Fair Use

Purpose of Use

Educational and Nonprofit Use: The use of copyrighted material for educational or nonprofit purposes is often more likely to be considered fair use. Teaching, scholarship, research, and news reporting typically fall under this category.

Commercial Use: Commercial uses are generally less likely to be deemed fair. However, some commercial uses may still be considered fair if they serve purposes such as criticism, commentary, or parody.

Ian Davies uploaded a photo to Reddit of his friend Kyle Craven which became the Bad Luck Brian meme that describes a variety of unlucky, embarrassing and tragic events.
Source: KIPG

Nature of the Copyrighted Work

Factual vs. Creative Works: The nature of the copyrighted work is a factor. Fair use is more likely to be applicable to factual works than to highly creative works. Using information from a scientific paper, for instance, may be more easily considered fair use than using a piece of fiction.

Published vs. Unpublished Works: Fair use may be more applicable to published works than unpublished ones, as the latter generally receive stronger protection.


Amount and Substantiality of the Portion Used

Quantity of Use: The more you use a copyrighted work, the less likely it is to be considered fair use. However, using a small portion may still be fair use if it is deemed reasonable for the intended purpose.

Quality of Use: If the “heart” or most essential part of a work is taken, even if it’s a small portion, it may weigh against fair use.


Effect on the Market

Market Impact: Fair use is less likely to be applicable if the use harms the market for the original work. This includes both potential market harm and actual market harm. If the use is likely to replace the original work or affect its value, fair use is less likely.

Transformative Use: Transformative use, where the new work adds value and transforms the original, is often seen as favourable for fair use. Parody, criticism, and commentary are examples of transformative uses. Under copyright law, “parody” has a specific limited definition: to qualify as legal parody, the new work must specifically mock the underlying original work.

An example of parody is Dr. Seuss’ estate against a book called The Cat NOT in the Hat! / A Parody by Dr. Juice, which used images and text based on Seuss’s books to mock the O.J. Simpson trial.

Source: OW&E

Good Faith

Intent and Good Faith: Courts may consider whether the user acted in good faith and with an honest intent. A well-intentioned use that aligns with fair use principles may be more likely to be deemed fair.


Nature of the User

Nonprofit and Educational Institutions: Nonprofit and educational institutions are often given more leeway in fair use assessments due to their missions to disseminate knowledge.

Commercial Entities: Commercial entities may be scrutinised more closely, but fair use is not automatically ruled out for them.

Case Studies

To illustrate the complexities of fair use, we can examine prominent case studies. One such example is the transformation of copyrighted images in the creation of memes. Memes often repurpose images in a humorous or satirical context, challenging the traditional notions of fair use and copyright protection.

Another area of contention is the use of copyrighted music in user-generated content on platforms like YouTube. Creators may argue that their content falls under fair use, as it may be transformative or used for commentary, but copyright holders may dispute this interpretation. In the digital age, the rapid dissemination of information and the ease of content creation have intensified the challenges of defining fair use. The internet has become a battleground for clashes between copyright holders and those advocating for more permissive interpretations of fair use.

Comedian and author Sarah Silverman, along with novelists Christopher Golden and Richard Kadrey, has filed copyright infringement lawsuits against OpenAI and Meta Platforms. The trio alleges that OpenAI’s ChatGPT was trained on datasets acquired illegally from “shadow library” websites, including Bibliotik, Library Genesis, Z-Library, and others. The exhibits presented in the lawsuit demonstrate that when prompted, ChatGPT generates summaries of the plaintiffs’ books, including Silverman’s “The Bedwetter,” Golden’s “Ararat,” and Kadrey’s “Sandman Slim.”

The trio are seeking almost $1billion from each tech giant, according to court filings.

The claim emphasises that the AI chatbot failed to reproduce any copyright management information included with the published works. The lawsuits, seeking class-action status, have broader implications for the world of artificial intelligence (AI), especially regarding how these systems access and utilise copyrighted materials.

The Allegations

Silverman and her co-plaintiffs argue that OpenAI’s ChatGPT and Meta’s AI projects engage in mass trawling of books to learn language and generate text without obtaining proper permissions from authors. According to the suits, these AI systems not only failed to secure consent but also accessed books through spurious means, including libraries of pirated texts. The contention is that AI is consuming the creative work of authors without proper attribution, credit, or compensation, violating intellectual property laws.

The legal action takes a stance against the very foundation of AI systems, highlighting their reliance on human-created content. Matthew Butterick, co-attorney in the lawsuits, emphasises that AI systems are built entirely on the work of human creators, divorcing the intelligence from its originators. The lawsuits seek financial damages and “permanent injunctive relief” to prevent AI systems from using copyrighted works without permission or compensation.

Jacqueline Charlesworth, a representative of publishers involved in a previous copyright litigation, sees the lawsuits as an existential issue for creators. The sudden entry of AI into popular culture has raised questions about the right of individuals to opt out of having their works used in AI models. Charlesworth argues for the protection of creators’ rights, emphasising the need for transparency and consent in the use of creative content by AI systems.

The lawsuits may offer a unique opportunity to lift the veil on the secretive world of AI operations. The discovery phase could provide insights into how systems like ChatGPT operate and learn. By challenging the notion that AI systems are magic black boxes, the lawsuits aim to promote transparency and encourage legal scrutiny of AI technologies. Understanding how these systems work is crucial, especially given AI’s increasing integration into daily life.

To conclude

As we navigate the gray areas of copyright infringement, it is crucial to recognize the evolving nature of creative expression and the need for a balanced legal framework. The tension between fair use and copyright protection highlights the importance of ongoing discussions, legal precedents, and a nuanced understanding of how we can foster innovation while respecting the rights of content creators.

As Sarah Silverman and her co-plaintiffs take on AI giants in a copyright infringement battle, the implications for the future of artificial intelligence remain uncertain. These lawsuits serve as a litmus test for the ethical and legal boundaries of AI systems that rely on human-created content. The outcomes could have far-reaching consequences, determining the extent to which AI can use copyrighted material and potentially reshaping the landscape of AI technology. Find out how you can protect your copyright here with us at intellect.