Can Fair Use be a defense to use UFC content?

MMA Junkie wrote a very nice piece on Wednesday on the UFC’s crackdown on copyright content.  We take a brief look at one of the legal theories that may be a defense to copyright infringement: Fair Use.

The article advises about the UFC’s aggressive protection of its marks.  Like many copyright owners, it searches online including places like YouTube to ensure that content is not used without the express consent of the copyright holder.  Of course, if you ask for consent, it’s likely that the copyright holder may deny your request or license the use so long as you pay the “license fee” associated with the use.

Either way, if you use a copyright owned by the UFC without consent, it’s likely that you may be the contacted by the company’s attorneys and/or receive a “cease and desist” or takedown notice.  BJJ Scout, according to the Junkie article, is the latest to discover the broad reach of Copyright law.  Some of its videos were taken down due to purported Copyright violations.

Of course, the main defense to the unauthorized use of copyrighted material is the Fair Use Doctrine.  Fair Use permits limited use of copyrighted material without acquiring permission from the rights holder.  It is one of the limitations and exceptions to the exclusive rights copyright law grants to the author of a creative work.

Under the Copyright Act, the fair use factors include

1. The purpose and character of the use, including whether such use is 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.

Fair Use is a popular defense but the doctrine is constantly evolving which makes it hard to determine an outcome.

Many people tend to focus on factor number 3, the actual amount of time they use the copyrighted work.  It might be a plausible argument to suggest that a 30 second clip or vine should be considered fair use.  However, courts consider the “substantiality” of the portion used to determine the amount used (see Harper & Row  v. Nation Enterprises).  So, a short clip showing the finish of a UFC fight or a key technique in the fight might be weighed much more than the fact it was only a very brief use of the copyrighted material.

Of course, one of the more famous (or infamous) cases asserting the defense of Fair Use was the 2 Live Crew case (Campbell v. Acuff-Rose Music, Inc.).  If you recall, the lawsuit was based on a parody of the Roy Orbison song, “Oh, Pretty Woman,” which was retooled by the Miami rap group.  2 Live Crew established that its song was a commercial parody of the Orbison song and qualified as fair use.  It prevailed.

More recent Fair Use cases take us down different paths.  Last spring, a federal judge in New York deemed an Off Broadway Play named “3C,” which was a dark version of the 1970-80s sit com “Three’s Company” did not violate copyright laws as it was a “highly transformative parody of the television series.”  Despite having the same characters and appropriating a substantial amount of material from the original ABC show, the judge found the play posed “little risk to the market for the original.”

In another noteworthy case regarding the Fair Use Doctrine, Universal Music Corporation on behalf of recording artist Prince filed a takedown notice to YouTube citing Stephanie Lenz for posting a 29 second clip of her baby dancing to his song, “Let’s Go Crazy.”  Lenz claimed fair use and requested that the video be reposted.  She sued Universal.  After a lengthy court battle the U.S. Court of Appeals for the Ninth Circuit determined that copyright holders must consider fair use in good faith before issuing a takedown notice for content posted on the internet.

The noteworthy thing in the Three’s Company and Prince cases were that the parties sued by the copyright holders received pro bono (i.e., free) legal assistance.  It’s clear that a legal fight is costly and if it were not for the legal teams that were willing to work for free (aside from the notoriety they would obtain from winning), there would not be a case.  Instead, in all likelihood, the copyright holder would win.

While the three cases discussed here (2 Live Crew, Three’s Company and the Prince case) all revolve around parody, a legal theory not claimed by many in the MMA-copyright issue world, the cases show the broad depth and interpretation of the law.

Payout Perspective:

The UFC is familiar with playing hardball when it comes down to its intellectual property.  Notably, last fall, the UFC and the NFL took down the twitter account of Deadspin alleging copyright violations.  Prior to UFC 193, the UFC issued a release to media stating that it would aggressively go after copyright violators as a precautionary measure to ensure that no media members attempted to “vine” the ending of the Rousey-Holm fight.  The thought was that it could be a quick ending which could easily be posted online.  The irony is that Holm won in the second round and the real “vine” ending of a fight occurred about a month later when Conor McGregor knocked out Jose Aldo.

For many MMA fans that used to post videos or gifs with UFC content, they are finding out that some of it may be taken down due to the company’s copyright.  It’s not always even-handed as some items might be online for a while as opposed to other postings which might be taken down immediately.  But, it seems that the only legitimate defense that one might offer is Fair Use.  As we see here, Fair Use is an evolving legal defense to a copyright violation.  But, is someone willing to put up the fight to claim that it has a right to use content based on the theory.  The case law tends to be not too helpful at this point.

The fact of the matter is that the Fair Use Doctrine has been criticized by scholars and attorneys for being “undisciplined” and “unwieldy” in its application and interpretation by courts.  Essentially, the doctrine is not applied uniformly by courts which makes it a guessing game as to how a court might rule when it comes to a party claiming Fair Use when being charged with a copyright violation.  Thus, is it worth it for someone to pay legal fees to fight a claim with an uncertain legal defense?