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A refresher on fair use

Fair use is often cited, but many may not have a clear idea of what it is. In short, fair use is a pragmatic doctrine that allows the use of portions of a copyrighted work without approval from the copyright owner or creator. Typically, this use is done with a good faith assertion. Many may not understand the scope of its application, but fair use is a part of our everyday life.

There are no black-and-white tests for fair use. Courts typically weigh four factors to distinguish between fair use and infringement.

The Purpose of the use

Some common reasons for favoring fair use include:

  • Teaching, including multiple copies of handouts or recordings for classroom use, as opposed to commercial use
  • Research, news reporting, criticism, comment, and scholarship, as opposed to entertainment
  • Nonprofit educational institutions versus for-profit organizations.
  • Transformative work or parody as opposed to denying an author’s ownership of the original work

The Nature of the work

This applies to the nature of the work copied:

  • The courts offer more leeway for published works rather than unpublished works
  • Use of factual or nonfiction works are given more leeway than the use of fiction or creative work (music, novels, plays, films or art)
  • Educational goals are favored by the courts over entertainment

The Amount of the work used

The size of the appropriation also matters:

  • Small quantities are okay, but large portions or whole works are not.
  • The strict percentage of a work that is used is not as significant as whether the use goes to the heart of the work.
  • Whether the amount used is more than necessary for the educational or other purpose of the use.

The effect of the use

The courts will also consider the negative effects of the usage. Examples include:

  • No significant effect versus repeated and long-term use
  • Making copyrighted material available to others in a public forum
  • Making similar or derivative works available for sale
  • The user repeatedly uses the material or does so over a long period

Fair use in the courts

Fair use is the rallying cry of many accused copyright infringers. However, copyright owners serve their best interests to protect ownership as long as the response is proportionate and economically realistic.

A knowledgeable intellectual property attorney who has experience litigating disputes involving fair use can be a tremendous asset discussing these issues. These legal professionals can discuss issues and likely outcomes with clients to determine if it is worth pursuing in court or perhaps offering alternate solutions.

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