What is Considered Fair Use for your Mobile App

The following excerpt from Protecting Your Mobile App IP: The Mini Missing Manual explains fair use and how it may apply to your mobile app.

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Under a legal doctrine known as fair use, there are times when you have the right to discuss, criticize, or poke fun at copyrighted works without seeking permission from the copyright owner. In general, fair use permits you to copy small portions of a work for “transformative” purposes such as parody, scholarship, or commentary.

The difficulty of applying fair use is that the standard is often subjective, so you can’t guarantee that your use is a fair use until a judge says so at the end of a lawsuit—and at that point you may be bankrupt from legal fees. In addition, website owners and app store retailers like Apple are rarely interested in the fine points of fair use; they simply remove the work if someone claims it’s infringing. Even if you can later convince them to reinstate your app, you’ll have lost weeks (if not months) of sales.

The upshot is this: Tread carefully in the realm of fair use. If you’d like to see some examples of fair use cases and discussion, two helpful websites are the Stanford Fair Use site (to which your humble author has contributed some content) at http://fairuse.stanford.edu and the Center for Social Media’s site.

How Much Can I Use Without Permission?

I want to use the theme song from a TV Show in my app. Can I do that without infringing? Is that a fair use?

Unfortunately, there’s no sure-fire way to guarantee that your use is a fair use. As you’ll learn in the following pages, you can only get a definitive fair use determination from a judge—and who wants to go to court over an app?

If you’re thinking about using someone else’s content in your app, ask yourself three questions:

• How likely is it that the copyright owner will find out about your use? This is usually the key issue. The more successful your app is, the more likely that a copyright owner will learn of your use and take action.
  
  
• How likely is it that they’ll care? This issue often hinges on whether the copyright owner feels that they’re either losing money or that their customers will be confused or upset by your use.
  
  
• If they do care, how far will they take it? The answer to this one is often complex and depends on the owner’s financial power, access to lawyers, and demeanor.

The bottom line is that, if you can acquire the material legitimately, then do so—it could save you a lot of hassle.

Can You Copy Code?

I want to copy some code from an existing app and I don’t want to ask for permission. How much can I copy?

There’s no way to tell how much is too much. Swiping code is difficult to justify as fair use, since that doctrine requires a transformative use of the borrowed material. Copying only a small portion of a program’s code could constitute copyright infringement, particularly if it’s a highly creative or important example of the programmer’s art.

For example, people have been successfully sued for copyright infringement for copying as little as 14 lines of source code out of a total of 186,000. However, there are instances where copying a small amount of code—like a particular routine or subroutine—may not constitute infringement. That might be the case if the portion of code is not likely to be protected under copyright law—if it’s a commonly re-used, minimally creative routine, a standard programming technique, or coding for elements dictated by manufacturing standards or design specs, for instance—or if a court considers it too small to bother with (in legal terms, de minimus).

Of course, it’s always difficult to predict what’s acceptable and the final decision is often in the hands of a judge who knows little about programming or code.