Fair use is essentially a defense to a charge of copyright infringement. A fair use meaning is comparable to a privilege in tort law. Similar to privileges in tort law that are determined and guided by broad guiding principles instead of strict statutory or common law definitions, fair use law is also guided by broad principles.

According to the fair use defense, another individual may make limited use of the original author’s work without permission. Certain uses of copyrighted material may not be considered infringement, including:

  • Criticism;
  • Comment;
  • New reporting;
  • Teaching;
  • Scholarship; or
  • Research.

The fair use doctrine is based upon the idea that the public may use portions of copyrighted materials for the purposes of commentary or criticism. This privilege is likely the most significant limitation on a copyright owner’s exclusive rights. If an individual writes or publishes, they should have a basic understanding of what is and what is not considered fair use.

In certain situations, fair use rules permit individuals to use copyrighted materials without the copyright owner’s permission. However, when determining whether the material is fair use, several factors must be considered, including:

  • The purpose and character of the material;
  • The nature of the copyrighted material;
  • The amount and quality of the material that is used; and
  • The effect of the material on the market for the original work.

If the purpose and character of the material is transformed into something completely new, for example using gum wrappers to make a purse, it is more likely to be considered fair use. However, if the material simply copies the original work, such as a movie adaptation of a book, it is less likely to be considered fair use.

Some copyrighted work is very creative and original. In these cases, it may be more difficult to use a fair use defense.

If the amount and quality of the material used from the copyrighted work are substantial, it will be more difficult to prove fair use. This also applies if material that is important to the copyrighted work is utilized.

The effect the material has on the market for the original copyrighted work will also determine whether or not fair use can be a defense. Material that is copied but does not harm the market for the original work is more likely to be fair use.

How Does the Fair Use Copyright Defense Work?

The fair use concept utilizes a balancing process in which a combination of factors determines whether other interests should override the rights of creators. Those factors include four interests defined by the Copyright Act, including:

  • The purpose and character of the use of the material, including its commercial nature;
  • The nature of the copyrighted material;
  • The proportion that was taken relative to the whole of the original work; and
  • The economic impact of the taking.

In addition, the intent and motive of the taker are often relevant. Any First Amendment interests may also be relevant. These interests defined above are weighed against the interest of protecting the author’s exclusive rights.

What Does Purpose and Character of the Use Mean?

The fair use doctrine includes the concept of purpose and character of the use. This notion includes dual concepts of commercial versus noncommercial and private versus public uses.

No set of guidelines provides that mere private or mere commercial uses are automatically fair uses, although they may be highly persuasive. In many cases, educational use, especially nonprofit use, is a traditional basis for a finding of fair use.

Does the Nature of the Copyrighted Work Matter?

Yes, the nature of the copyrighted work may influence whether it is considered fair use. For example, if a work is a form book or a book of quotations intended to be used by others who are expected to use a portion of the contents in other works, the fair use defense seems reasonable. However, if the reproduction or performance of a poem or musical composition with no functional use and no expectations for later adaption or use would not reasonably support a defense of fair use.

What are Other Defenses Related to Fair Use?

There may be other defenses available related to fair use. These include:

  • Parody;
  • Satire;
  • Photocopying;
  • First sale doctrine;
  • The proportional amount and substance of the use; or
  • The economic considerations in relation to fair use.

A parody is a work that is a method of criticism of another work. A work must be a valid parody in order to use this defense.

Although satire is similar to parody in that both use humor, it is less likely to be considered a fair use defense. This is because a parody criticizes the actual work and a satire criticizes the world not the actual work.

For photocopying, it is generally acceptable in certain situations, such as a teacher copying a portion of a book for use in class. It would not be acceptable, however, to photocopy the entire book.

The first sale doctrine permits an individual who purchases a copy of a copyrighted work from the copyright holder to sell, display, or otherwise dispose of the copy they purchased, notwithstanding the interests of the copyright owner. There may be exceptions, however, such as when a set of art prints is purchased, they cannot be separated and sold.

The proportional amount and substance of the use matters. As a general principle, the more taking, the more infringement. More can be measured by the proportional substance or quality of the taking. For example, taking the whole background of the Mona Lisa painting, assuming it is protected and not in the public domain today, may not be an infringement. However, even a small but complete taking of a portion of the Mona Lisa’s face or smile would be qualitatively, although quantitatively, more serious.

There are some economic considerations in relation to fair use. If a use is motivated mostly by a desire for a commercial profit, it is more likely a violation will be found. For example, a work published primarily for private economic gain is more likely to be considered an infringement than a work that is not. Another example would be if a poem is used for artistic purposes, it may be considered fair use. However, the same quote used in an advertisement is more likely to be considered infringement.

Additionally, copyrighted material used for a public benefit may also constitute fair use. This is the case even if the use generates money for the user. For example, copyrighted material may be used in a public service announcement in order to warn the public.

Should I Consult a Lawyer about My Copyright Issue?

Yes, it is important to consult with a copyright lawyer when dealing with your copyright issue. The regulations and deadlines for copyright registration are detailed and strict. An experienced attorney can assist in meeting all requirements and complying with any deadlines.

An attorney can also research and ensure that no one else is using the copyright without your permission. They can assist with copyright infringement cases and represent you during any court proceedings, if necessary.