The “Fair Use” Doctrine
Posted on Apr 09,2018, at 12:24 pm.

The United States recognizes no "natural right" in an author to prevent others from copying or otherwise exploiting his work. However, copyright laws provide authors with limited property rights in their works for the ultimate purpose of enriching the public with a many works of authorship as possible. In fact, one of the biggest limitations on copyrighted works is known as the "fair use" doctrine.

 

So, what is the "fair use" doctrine and how does it apply to copyrighted materials? "Fair use" is a defense raised by defendants in copyright infringement cases. The copyright owner or plaintiff must show prima facie evidence that the potential copyright infringer or defendant committed copyright infringement. If the plaintiff can show such evidence, then the defendant could raise "fair use" as a defense to copyright infringement. In other words, "fair use" means that an individual can use copyrighted material of another without the copyright owner’s permission.

 

Under the Copyright Act of 1976, 17 U.S.C. § 107, "fair use" includes the use of a copyrighted work for such purposes as (i) news reporting; (ii) criticism; (iii) comments; (iv) teaching; (v) scholarship; and (vi) research. However, to determine what constitutes “fair use” for each particular situation, a 4-factor balancing test was established. Courts may also consider other factors, but will consider at a minimum the following:

 

  • Purpose and Character of use

 

Courts will look to the purpose and character of using the copyrighted work. For instance, courts may be more likely to allow use if the use is for educational, personal, or nonprofit activities. Courts may be neutral if the use is for criticism, comments or news reporting. However, courts may be less likely to allow use if the use is for commercial activities.

 

Courts may also look to whether the use is a transformative or derivative work. A transformative work is basically a new work that may have used a few aspects of the original copyrighted work. In contrast, a derivative work is derived from the original copyrighted work. Thus, courts may be more willing to allow use for transformative works than derivative works under the "fair use" doctrine.

 

  • Nature of the Copyrighted Work

 

The nature of the copyrighted work deals with how the work was created and used. Because the dissemination of facts or information benefits the public, you have more leeway to copy from factual works than you do from fictional works. Moreover, you will have a stronger case for fair use if the copied material was from a published work than an unpublished work. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of his or her expression.

 

  • Amount and Substantiality of the Portion used from the Copyrighted Work

 

This factor basically asks, "How much of the copyrighted work did you use?" The less you took, the more likely that your copying will be excused as a fair use. However, merely using a small amount from a work will not shield you from copyright infringement, if the portion taken is the "heart" of the work.

 

  • Effect on the Value of the Copyrighted Work

 

This factor deals with how money is made off of the copyrighted work. This factor essentially asks whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. Depriving a copyright owner of income will very likely trigger a lawsuit; hence, it is generally a good idea to stay away from using any copyrighted materials that could generate money for the copyright owner. In fact, the best option, generally, is to get written permission from the copyright owner to use the work before using the work. If procuring permission to use the copyrighted work is impossible, you may want to avoid using the work altogether, unless fair use clearly applies. Finally, it is usually a good idea to consult with an attorney in cases of doubt.

 

Please note that this article is for informational purposes only and does not constitute legal advice. If you have questions regarding your particular situation, please contact a qualified attorney.

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