When most people look for a job, they send a résumé and perhaps some samples of their work to a potential employer. But when actors are looking for work, they often send casting directors clips of films or plays in which they performed. When one actress sent her clips, however, the film producer who owned the movie she excerpted on her acting reel sued her for copyright infringement. The Ninth Circuit sided with the actress, saying the “fair use” doctrine protected her.

In a unanimous decision, without oral argument, Circuit Judges Bridget S. Bade, Lucy H. Koh and Kenneth Kiyul Lee affirmed the summary judgment decision by Judge Percy Anderson of the United States District Court for the Central District of California. Actress Jessica Haid was protected by the “fair use” doctrine, which allows the use of some copyrighted material without the permission of the copyright owner. Fair use means material can be copied without committing infringement. The producer had registered the copyright for the movie in which Haid appeared shortly after it was completed in “2015 or 2016.”

Robin Bain, who wrote, produced, directed and appeared in a movie titled Nowhereland or Nowhereland Girl Lost sued Haid because the actress had included small portions of her performance on two of her acting reels. On one, she spliced in two minutes and 50 seconds. On the other, she included three minutes and 39 seconds. Bain said that Haid had asked for permission to use the copyrighted material, but Bain refused to allow it because she feared that including portions of her film on Haid’s reel would harm future distribution deals. Subsequently, the film was shown at several film festivals, on streaming platforms, and in other venues.

Despite Bain’s denial of permission, Haid obtained a copy of the film that still had watermarks on it. She took it to an editing company to have the watermarks removed and create her acting reel. Haid subsequently posted her reel on the internet where Bain discovered it on the editing company’s website. Bain confronted her and Haid said she removed it, but Bain still found it on her Google drive. Bain sued Haid for copyright infringement and violations of the Digital Millennium Copyright Act (DMCA) in May 2018. The DMCA, enacted in 1998, extended copyright protections and penalties to online materials.

The District Court’s decision cited the text of the United States Code and the DMCA that define copyright. In the section entitled “Limitations on Exclusive Rights: Fair Use,” the U.S. Code section explains that four factors are included during fair use consideration. First among these is “the purpose and character of the use,” and whether it is for “commercial or nonprofit purposes.” Copyright owners clearly have the right to profit from the work they own. But others, such as educators, researchers, or reporters, who are not making a direct profit from the work, often need to use portions to tell their stories or perform their jobs properly.

The second consideration is the “nature of the copyrighted work,” followed by the amount used in relation to the work as a whole. The fourth consideration is the “effect of this use upon the potential market for or value of the work itself.” Using these factors, the Ninth Circuit opinion reviewed the reasons it believed that the District Court properly granted summary judgment.

The District Court in August 2020 decided the copyright infringement matter without oral argument. In his opinion Judge Anderson explained the purpose of the fair use doctrine. He said the Supreme Court said courts must determine “whether the new work…adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” In other words, was the new use “transformative?” He explained that “the more transformative the work, the less will be the significance of other factors.”

Anderson then said that Haid’s reel was transformative. Unlike the film, it told no story. The second factor, the nature of the work, however, was found to be in favor of Bain due to the film’s limited release at the time Haid’s reel was posted on the internet. The third factor, the amount of material copied, was found to be in Haid’s favor because of the small amount used and the fact that it revealed very little of the film’s plot. The fourth factor, the effect of the potential market, weighed favorably for Haid. The court did not believe that a reel made for casting directors would have any economic impact on the profitability of a film.

Similarly, fair use under the DMCA protected the portions of Haid’s reel that were digitally distributed. The DMCA, however, according to a 2019 Ninth Circuit Case, required Bain to show that Haid “possessed the mental state of knowing, or having a reasonable basis to know, that his actions will induce, enable, facilitate, or conceal” infringement.

Haid also raised defenses based on what she claimed were wage and safety violations when she was working on Bain’s film. The District Court declined to hear those because it denied jurisdiction over Haid’s unraised state law claims.

The Ninth Circuit reviewed Anderson’s opinion and agreed that Haid’s use of the small portions of the film constituted fair use. The District Court had properly granted summary judgment. The opinion did not say whether Haid’s job search was successful in landing a new role because of what her clip reel showed.