Fair Use is in the eye of the beholder
Fair Use is the idea that you can use copyrighted materials to the extent that there's no direct copying. The Copyright Act of 1976 is where Fair Use is defined
A court weighs four factors when it considers a fair use defense.
These four factors are spelled out in Section 107 of the Copyright Act
of 1976 (17 U.S.C. § 107) and are:
- the purpose and character of the use, including whether it's of a commercial nature or for nonprofit educational purposes
- the nature of the copyrighted work
- the amount of the copyrighted work used in relation to the copyrighted work as a whole, and
- the effect of the use upon the potential market for or value of the copyrighted work.
As you can see, these are not yes/no questions, so it's up to the
courts to determine whether each factor supports or goes against a
finding of fair use. Even then, there's no equation or formula for
determining whether a use is fair use. The courts consider each factor
and then decide whether, on balance, they point in favor of or against
In other words, there's a pretty wide latitude to sue anyone who infringes upon your copyright. Why aren't there a ton of lawsuits then?
Copyright litigation is prohibitively expensive
Nobody wants to be sued for copyright infringement. It can run into large sums of just attorney fees just to get it to court, let alone get a judgment. JK Rowling and Warner Brothers (US copyright licensee) won $6750 and an injunction against a Pottermore book, but both sides certainly spent far more than that in litigating the issue. If there's a chance you might be seen as infringing upon someone's copyright, it's cheaper to avoid the issue.
If you're making money, litigation odds go up
"Weird Al" Yankovic, for instance, parodies popular songs. He could make a Fair Use case, but, as he's making money in the process, it's safer to just license the music instead
Al does get permission from the original writers of the songs that he parodies. While the law supports his ability to parody without permission, he feels it’s important to maintain the relationships that he’s built with artists and writers over the years. Plus, Al wants to make sure that he gets his songwriter credit (as writer of new lyrics) as well as his rightful share of the royalties.
This makes a lot of sense. He rarely does anything controversial with his songs and it's extra revenue for the song writers. More importantly, you won't sue someone paying you under license.
Does the copyright holder like the use?
What's the difference between MLB and Disney? My bet would be something to do with this
I was asked to be part of a photo shoot for a political candidate.
I'll get political for just a second. You don't mention the politician, but I can think of a few that the The Walt Disney Company might not be keen on seeing with their licensed material. Chief among them would be Florida Governor Ron Desantis
DeSantis, out for revenge after suffering a major loss in his efforts to punish Disney for being “woke,” announced a new bill to rein in Disney’s theme parks Tuesday. In a return to the issue that first earned it the governor’s ire, the “Happiest Place on Earth” unveiled its first-ever event to celebrate Pride Month on April 14, complete with themed entertainment and specialty menu items.
The open secret here is that you can sue anyone for copyright infringement, even if there's a strong case for Fair Use. Not liking the person you're suing can play a role in suing for copyright infringement
After more than a year of battling in court, Ethan and Hila Klein, the YouTubers behind the H3H3 Productions channel, won a lawsuit filed against them by another YouTuber. Matt "Hoss" Hosseinzadeh—MattHossZone on YouTube—sued the pair after they uploaded a video in which the Kleins react to one of Hosseinzadeh's videos and criticize him in the process. Hosseinzadeh then sued the Kleins for a number of things, most notably copyright infringement for using clips of his video in their own.
A major league baseball team is far less likely to start a feud with a politician's photographer than a major corporation openly engaged in a political feud.