In the most general sense, copyright infringement is copying, or using, a work protected by copyright without permission from the copyright owner. Almost inevitably, soon after you hear the words “copyright infringement”, you will also hear the words “fair use”. Fair use is one of the most frequently discussed defenses to copyright infringement but it is also one of the least understood. This article is intended to help you understand what fair use is and what factors are used when determining if fair use is an applicable defense to copyright infringement.
Fair use is a term that comes up daily in our office and we frequently hear the term being used both correctly and incorrectly. The fair use defense has recently been raised in a number of high profile copyright disputes involvingAbbott and Costello, Star Trek, and Dr. Seuss. As our society becomes more dependent on digital communication and social media, the potential to infringe upon copyrighted works increase. At its core, social media is all about sharing content but to many people’s dismay, stating “it’s just on my blog/Facebook/Twitter/Instagram” is not a viable legal defense to copyright infringement. Understanding what is and what isn’t considered a fair use may help you avoid potential headaches in the future.
What Is Fair Use?
Again in very general terms, a fair use is any copying, or using, of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work.
Fair use is a legal doctrine that is intended to promote freedom of expression and balance the scope of copyright protection by permitting the unlicensed use of copyright protected works in certain situations. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses including criticism, comment, news reporting, teaching, scholarship, and research as examples of activities that may qualify as fair use. Fair use is not, however, limited to those examples listed in Section 107. Courts examine the facts surrounding each particular case and balance them against four factors to determine whether or not something should be considered a fair use. The four fair use factors are:
In addition to the factors listed above, Courts may consider other factors as well, and no one factor is dispositive. They are each analyzed individually and then balanced with the others. Because the analysis is done on a case-by-case basis and the outcome of any given situation depends on a fact specific inquiry, there is no formula or bright line rule to ensure that a certain percentage or amount of work may be used without permission. If you find yourself on the wrong end of a copyright infringement claim, or want to know if your fair use defense is viable, using the above factors in making an initial analysis or decision is a great start. Upon doing so, if you still have questions or need additional information, we recommend contacting competent legal counsel for further advice and guidance.
Brandon W. Clark is the Chair of the Copyright, Entertainment, and Media Law Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit www.ipmvs.com or contact Brandon directly via email at firstname.lastname@example.org.
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