In April of 2019, FloGrappling https://www.flograppling.com/ took down BJJScout’s Instagram account because of BJJScout’s alleged used of Flo’s copyrighted tournament videos. Even though FloGrapphing (“Flo”) has copyrighted their videos of Brazilian Jiu Jitsu (BJJ) videos, there are limits to those rights.
Copyright Infringement—Fair Use
Section 106 of the Copyright Act confers a exclusive rights to the owner of a copyright, including the right “to publish, copy, and distribute the author’s work.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 547 (1985).
However, these copyrights are subject to “certain statutory exceptions,” including the “privilege of other authors to make ‘fair use’ of an earlier author’s work.” Id. (citing 17 U.S.C. § 107).
Section 107 of the Copyright Act was intended to codify the pre-existing judicial doctrine of fair use. Fair use was was traditionally defined as ‘a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.
Fair use is an affirmative defense for which BJJScout has the burden to establish that its otherwise infringing use of Flo’s videos is excused. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994). The Copyright Act permits the unauthorized use or reproduction of copyrighted work if it is “for purposes such as criticism, comment, news reporting, teaching . . .scholarship, or research.” 17 U.S.C. § 107.
Whether a particular use of a copyrighted work is fair requires consideration of factors: (1) the purpose and character of the use; (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 on the potential market for or value of the copyrighted work.17 U.S.C. § 107.
These factors are non-exclusive and are to be weighed together, in light of the purposes of copyright.
Some courts have described “the ultimate test of fair use” as “whether the copyright law’s goal of promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.” Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 608 (2d Cir. 2006)
Factor One: The Purpose and Character of the Use
Under the first factor, courts consider the culpability of a defendant’s conduct in acquiring or using a work, the extent to which such use is transformative, and whether such use is for commercial or noncommercial purposes.
There’s no doubt that BJJScout has some videos behind a paywall. https://BJJScout.com/category/patreon-exclusive-content/ If there were Flo copyrighted videos behind the Patreon paywall, then the commercial factor weighs against a finding of fair use.
BJJScout is a for-profit business that earns advertising revenue based on pageviews. .As for whether BJJScout’s use is transformative, the question is “whether the new work merely supersedes the objects of the original creation, . . . or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”Id. at 579 The importance of this subfactor is determined on a sliding scale: “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Id.
BJJScourt can argue that the use of the Flo videos is transformative because the purpose for his breakdown videos is to depict the artistry of the jiu jitsu techniques used by certain BJJ competitors instead of the actual matches. You can say that the breakdown of the techniques with the pauses and illustration and the vocal narratives transforms the fight videos into instructional videos. BJJScout and Flo uses the videos for different purposes (the former is instructional and the later is historical). If there BJJScout shows a Flo video with no breakdown then that would not be transformative and fair use. Factor one favors BJJScout over all.
Factor Two: The Nature of the Copyrighted Works
In considering nature of the copyrighted work, courts look at “the extent to which the workis a creative work enjoying broader copyright protection as opposed to a factual work requiring broader dissemination. A use is less likely to be deemed fair when the copyrighted work is a creative product.
The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.
Flo can argue that it’s videos reflect Flo’s creative judgments about things like angle, framing, and timing. When creative judgments are apparent in a photograph—even if the purpose of the image is to document or convey factual information—courts tend to hold that the work is creative in nature. Monge v. Maya Magazines, Inc., 688 F.3d 1164, 1177 (9th Cir. 2012);
This factor could go either way for BJJScout or Flo.
Factor Three: The Amount and Substantiality of the Portions Used
How much BJJScout copied of Flo’s tournament videos is a factor. In considering the amount and substantiality of the portions used, courts “examine both the quantitative and qualitative aspects of the portion of the copyrighted material taken.”Monge, 688 F.3d at1178 (citing Campbell, 510 U.S. at 586). “While wholesale copying does not preclude fair use per se, copying an entire work militates against a finding of fair use.”Kelly, 336 F.3d at 820. The short samplings of Flo’s videos all factor towards fair use.
Factor Four: The Effect on the Works’ Potential Market or Value
Courts consider the effect of the use upon the potential market for or value of the copyrighted work. This last factor is the single most important element of fair use. The analysis of this factor “requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer,” but also “whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market for the original. Flo makes these breakdown videos available for free. If a BJJ fan wants to see a Flo tournament, he or she must still get a Flo subscription.
The BJJscout breakdown videos are not a substitute for Flo’s tournament feeds if a fan wants to see the entire match or the results of BJJ matches.
Overall, the factor weighs in favor fair use by Flo.