What is Fair Use?

Fair is fair – right? Well, in the world of copyright fair use, fair depends on the usage of your particular situation. Fair use refers to the doctrine which allows people limited usage of a copyrighted work for purposes that include commentary, criticism, education, research, and news reporting.

To determine whether you are within fair use, Section 107 of the U.S. Copyright Act calls for a balanced application of these four factors:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
Nonprofit educational purposes are generally favored over commercial, but they are not all considered fair use. You must apply all four factors to determine fair use, so the purpose alone, is not sufficient. As for the character of use, “transformative” is favored over simple reproductions of a work. When the work has been transformed into something new or combined with a different media, fair use is more likely to be found.

2. The nature of the copyrighted work;
Courts tend to give greater protection to creative works such as art, music, poetry and films than to nonfiction works. In addition, commercially available educational works are generally disfavored as fair use.

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
There is no specific number of words, lines, or notes that may safely be taken without permission which can make this rather tricky. Generally the more you use, the less likely it is fair use. However, Courts have ruled that even uses of small amounts may be excessive if they take the “heart of the work.”

4. The effect of the use upon the potential market for or value of the copyrighted work.
This means that if you could have realistically purchased or licensed the copyrighted work, fair use may not be applicable as you are de-valuing the copyrighted work.  “Effect” is also closely linked to “purpose.” If your purpose is research, market effect may be difficult to prove, but if your purpose is commercial, then adverse market effect may be easier to prove.

The distinction between “fair use” and infringement may be unclear and not easily defined, so it is important to weigh all four of the above factors when determining fair use of a copyrighted work. Still confused? Come speak with one of our attorneys here at Brannon Sowers & Cracraft.

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