Fair use is similar to a privilege in tort law and, just as tort privileges are determined and justified by broad notions of guiding principles rather than by strict statutory or common law definitions, so too is fair use. It is like a privilege because it is essentially a defense to a charge of infringement.

How Does the Fair Use Defense Work?

Fair use involves a balancing process by which a combination of variables determine whether other interests should override the rights of creators. The Copyright Act identifies four interests:

  1. the purpose and character of the use, including its commercial nature;
  2. the nature of the copyrighted work;
  3. the proportion that was "taken" compared to the whole of the original work; and
  4. the economic impact of the "taking."

Additionally, the intent and motive of the defendant are often relevant as well as any First Amendment interests. These interests are weighed against the interest in protecting the author’s exclusive rights.

Purpose and Character of the Use

Included in this notion are the dual concepts of commercial versus noncommercial and public versus private uses. There is no set of guidelines instructing that mere private or mere commercial uses are automatically fair uses, although they are highly persuasive. Educational purposes, especially nonprofit ones, are traditional bases for a finding of fair use.

Nature of the Copyrighted Work

If a work is a form book or a book of quotations intended for use by others who are expected to use a portion of the contents in other works, a defense of fair use seems rational. On the other hand, the reproduction or performance of a poem or musical composition with no functional use and no expectations for later adaptation or use would not so easily support a defense of fair use.

The Proportional Amount and Substance of the Use

Although the general principle is "the more the taking, the more the infringement," one must first define what "more" means. "More" can be measured meaningfully by the proportional substance or quality of the taking. For example, a whole taking of the entire background of the Mona Lisa (assuming it is protected rather than in the public domain today) might not be an infringement, whereas even a small but complete taking of the portion of the face or smile would be qualitatively although not quantitatively more serious.

Economic Considerations in Relation to Fair Use

If the use is motivated mostly by a desire for commercial profit, a violation is more likely to be found. In other words, a work that is published primarily for private economic gain is more likely to be considered an infringement than work that is not. For example, a quote used in a poem for artistic purposes might be considered fair use, whereas the same quote used in an advertisement is more likely to be considered infringement.

Along these lines, copyrighted material that is used for the benefit of the public might also constitute fair use. This is true even if the use does generate money for the user. An example of this is the use of copyrighted material in a public service announcement intended to warn the public. 

Other Defenses Related to Fair Use

  • Parody
  • Satire
  • Photocopying
  • First Sale Doctrine

Should I Consult a Lawyer about My Copyright Issue?

The deadlines and regulations for copyright registration are detailed and strict. An experienced intellectual property attorney can help you meet all the deadlines and fulfill all the requirements. A lawyer can also participate in on-going research to make certain no one else is using your copyright without your permission. Additionally, if you have an issue of copyright infringement, an attorney can guide you through the difficult and strict procedural requirements for litigation and bring out the core of your case.