Explaining Fair Use

FAIR USE

Fair use is a common topic brought up in the intellectual property field. People repost images, videos, and more, because in the age that we currently live in, the mass sharing of images, videos, and information is what we do. However, when fair use is talked about in message boards, I generally see things misunderstood.

WHAT IS FAIR USE?

Fair use is a doctrine of law that allows for the limited use of copyrighted material without gaining permission from the copyright holder. Fair use is generally used as a defense against infringement. This means that one (generally) admits to infringing on the work in question, and that one would use the defense after a lawsuit has commenced against them. Some common uses of fair use are:

• Education (as in a teacher or professor using the material for students to study),

• news reporting,
• criticism,
• comment,
• research.

The court will look to a “transformative” use. “Transformative” means that the use adds something new. Criticism on a movie is a good example. You are not copying the movie in your criticism. Your criticism is your own, but it is reliant on whatever portion of the movie you are talking about.

WHAT IS THE LEGAL DEFINITION?

The legal definition of fair use, as seen in 17 U.S.C. §107 is:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

Here, we look at how are you using the work in question. Are you using it for research purposes, or educational purposes? The commercial or non-commercial nature of the use does not change whether or not one has copied the work. Additionally, a “transformative” use is more likely to be deemed fair use.

(2) the nature of the copyrighted work;

Here, what we look at is if you copying facts or ideas, which are not protectable, or if are you copying a fictional novel for example. Copying something fictional will not help support a claim of fair use, whereas copying a fact, such as a mathematical equation, will be helpful in supporting a claim of fair use.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

Here, the quantity and quality of the copyrighted material is analyzed in proportion to the new use. If the use includes a large amount of the original work, then fair use is less likely to be determined ok. If the use includes only a small amount of the original work, fair use is more likely to determined ok. However, there are cases where a small portion of a work is so important, that it is the “heart” of the work, and copying the “heart” will not be deemed appropriate fair use. Sometimes the use of a large portion has been deemed as appropriate fair use.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Here what is looked at is if the use harming the existing, or potential future market for the copyrighted work. One good example would be if the use would be displacing sales of the original copyrighted work, and whether that use could cause substantial harm in a different market.

For example, a large portion of a book is copied. That use could harm the direct sales of the book, and potentially harm the sales of a movie deal.

The four factors listed above are analyzed on a case by case basis. This means that there is no strict formula as to what percentage of a copied work, or specific number of words, lines, etc. is considered fair use.

I hope all of that information is helpful. If you need more information you can visit the copyright.gov website, or contact an attorney.