Fair Use of Copyright

By Lia Kopin-Green
/
August 30, 2022

What is Fair Use of Copyright?

Fair use of copyright is a doctrine in the United States that allows limited use of copyrighted material without needing to acquire permission from the copyright holder. In other words, fair use is used as a defense against copyright infringement since it is considered a legal use of copyrighted material. 

Common fair uses of copyrighted material include criticism, commentary, research and news reporting.

Key Takeaways

  • Fair use allows limited use of copyrighted material without having to acquire permission from the copyright holder.
  • Fair use of copyright is not considered copyright infringement.
  • Criticism, commentary, research and news reporting are often considered fair use of copyright.
  • The court will typically determine whether a fair use defense is valid according to four factors stated in Section 107 of the Copyright Act.

The Factors of Fair Use

According to the United States Copyright Act, the court must consider the four following factors while evaluating a fair use of copyright:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

Fair use of copyrighted material must be done for a “transformative” purpose. Simply put, transformative uses add something new to the copyrighted material and do not substitute the original use of the work.

  • The nature of the copyrighted work

Fairness is more likely to prevail if material is derived from primarily factual works rather than purely fictional ones, since the purpose of a copyright is to encourage creative expression.

  • The amount and sustainability of the portion used in relation to the copyrighted work as a whole

If the use contains large portions of the original copyrighted material, it is less likely to be deemed fair use. Nonetheless, using even small amounts can be considered unfair if it uses the “heart” of the copyrighted material.

  • The effect of the use upon the potential market for or value of the copyrighted work

If the use of copyrighted material is likely to harm the copyright owner’s ability to profit from his or her original work, it is less likely to serve as fair use.

Moreover, some argue that the court uses a fifth factor that is not included in the law to decide whether or not fair use applies to a case. This fifth factor occurs when the judge uses his or her own beliefs and opinions to make a decision regarding fair use of copyright. Therefore, the exact formula for determining what constitutes fair use is difficult to determine since each case is evaluated individually.

Examples of Fair Use

Although fair use is generally decided on a case by case basis, the following uses are typically accepted as fair:

  1. Criticism: Fair use principles allow you to use copyrighted work in order to provide commentary or criticism. 
  2. Parodies: The court understands that parodies, which ridicule work in a comic way, require the use of copyrighted material.
  3. News Reporting: Journals often include copyrighted material to provide reports on certain events such as interviews or speeches.
  4. Research: Quoting parts of copyrighted work for research purposes is usually considered fair use.

Bottom Line

Figuring out what exactly constitutes fair use can seem complicated, but it is crucial in order to prevent copyright infringement issues. If you need advice when it comes to determining whether you can apply the fair use doctrine to your specific case, speak to one of our experienced intellectual property attorneys as soon as possible.

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