Fair Use Doctrine of 2022 O-Week

Have you ever wondered if a college's O-Week theme is copyright infringement?

No? That’s not the first thing most people think about?

Because it is here at the PTRC.

Looking through the O-Week 2022 themes, I notice a few are based on registered intellectual property. And that’s not new; the same goes for Beer Bike themes. Both heavily rely on pop culture.

As a quick disclaimer, this post isn’t meant to admonish or warn any colleges, or call out a theme as problematic—even the selected examples. It’s actually about fair use doctrine.

Fair use is a legal doctrine that allows and promotes free speech by permitting the use of copyrighted material in specific circumstances. No licensing or permission is required. Section 107 of the Copyright Act defines the types of permitted uses, and lists four factors for evaluation. Permissible uses include commenting, news reporting, criticism, teaching, research, and, most important to the topic at hand, parody (Stanford Libraries, "What Is Fair Use?").

Copyright protection applies to all creative expression, as seen in this adult Pokémon Go parody.

Take Baker’s Regular ShO Week. It’s based on the TV series the Regular Show, which has just about every single episode individually copyrighted, as well as a plethora of shorts, a movie, and related merchandise.

Just a few of the copyrighted Regular Show episodes and other related media.

Or, look at Brown’s Pokémon Go Week, based on the popular app and game Pokémon Go. The original app software, computer file and all of its updates have been registered with the Copyright Office, along with related music and other works. 

The copyright registration record for the most recent version of Pokémon Go.

Both colleges are parodying the copyrighted material. Would a court agree it is fair use? Let’s take a look at the four evaluative factors mentioned above. (Another disclaimer: I am not a legal expert or a lawyer; none of this entry may be used as legal advice or considered legal opinion.)

First, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”. Baker and Brown are using themes in a non-commercial nature. Whether the themes are a nonprofit educational purpose is less clear, but because Rice is an educational institute, it could potentially be qualified as such.

Second, “the nature of the copyrighted work”. Copyright.gov explains that this factor is intended to analyze how the original work relates to the purpose of copyright—to encourage creative expressions. In other words, “[m]ore creative or imaginative work is less likely to support a claim of a fair use than using a factual work” (Copyright.gov, "More Information on Fair Use"). Both Baker and Brown are parodying more creative or imaginative works, which could mean they are less likely to support a fair use claim.

Third, “amount and substantiality of the portion used in relation to the copyrighted work as a whole”. This factor likely depends less on the overall theme selection, and more on how it is applied. If Brown named each new student group after a Pokémon character or critter, extensively copied art from the game, and incorporated copyrighted code into their website, that might be less permissible as fair use. The same goes for Baker if they named all new student groups after Regular Show characters, episodes, or other concepts, and took art and music from the original work. Unfortunately, looking at the student group names opened far too many new cans of worms; most were based on at least one copyrighted concept and often included a second from another work.

Aside from that, both Brown and Baker O-Week books could benefit from crediting the creators of Pokémon Go and Regular Show, since some artwork, or artwork themes, appear to be borrowed. Though it is possible the Regular Show creators would appreciate Baker’s explanation for selecting their theme.  

Ultimately, when compared to a game played by millions, from one of the longest-running animes and largest anime merchandising franchises; and a show with over 200 episodes and at least one movie, Baker and Brown are truly using a minuscule set of concepts.

Fourth, “effect of the use upon the potential market for or value of the copyrighted work”. If a court evaluated how Baker and Brown might harm the existing or future value or market for these works, it is difficult to imagine they would deem the themes harmful. Potentially, the themes have encouraged participants to watch the Regular Show or play Pokémon Go. Furthermore, O-Week is limited to a small Rice population, and has little interaction with the wider community.

After considering each point, Baker and Brown appear to be respecting fair use doctrine in their O-Week themes. While a legal expert or lawyer could provide more insight, it is likely unnecessary to recruit one. O-Weeks have borrowed copyrighted material for decades. And, chances are, all fall within the boundaries of fair use.

 BONUS: Fondren Guide to Fair Use