For attorneys frequently engaged in copyright infringement litigation, drilling down into the specifics of the four fair use defense factors set forth in 17 U.S.C. § 107 is common practice. While the details of any particular case will imbue certain factors with more importance than others, more often than not, copyright plaintiffs are quick to note (and criticize) when defendants are for-profit entities and when the contested material is posted on a website that contains advertising – e.g., online news sites and social media. Indeed, part of 17 U.S.C. § 107(1) asks whether the contested use “is of a commercial nature.” But the existence of commercialism and website advertisements is not, and should not be, a death knell for a successful fair use defense.

The best defense to this sort of overly technical reading of “commercialism” comes from the Supreme Court itself in Campbell v. Acuff-Rose Music, Inc., when it clarified that commerciality cannot carry “presumptive force against a finding of fairness,” since nearly all the illustrative fair uses in the statute operate as for-profit businesses in the United States. With this language in mind, courts have distinguished between pure commercial uses and scenarios where the mere existence of copyrighted material is very attenuated or incidental to the general commercial medium or platform where that material is reproduced.

For example, imagine a copyrighted photograph that is used in an online news article and is posted on a news company’s website that contains general advertisement. If that image is the thumbnail that is clicked on to open the article or is otherwise used as “clickbait” to encourage readers to enter the site, then the original author should have a good argument that the news company is using his or her copyrighted material in a directly commercial fashion. On the other hand, if the copyrighted image is not used to drive traffic to the website, happens to be one of many images on a particular news page and otherwise has no connection to any particular advertising on that page, then commercial use of the image is at best de minimis. Other factors such as how many times the webpage was visited by readers and the amount of ad revenue generated by those visits would also provide persuasive context as to how “commercial” the use is. See Castle v. Kingsport Publish. Corp., 2020 WL 7348157, at *3, 6 (E.D. Tenn. Dec. 14, 2020) (“Unlike in Balsley, where the defendant made over one-million dollars on the sales of the magazine that contained the pirated photograph, Defendant [here] made less than $20.00 [from webpage ad revenue].”).

The ultimate success of a fair use defense to copyright infringement rises and falls on many tides. But before conceding that commerciality weighs against fair use for a corporate defendant or use of copyrighted material online, litigants should meaningfully explore the context and financial gain (if any) directly linked and attributed to the contested material itself.