Under the doctrine of “fair use,” the law allows the use of portions of copyrighted work without permission from the owner. Fair use is a defense to copyright infringement. These types of issues are regularly debated and argued by the intellectual property lawyer in our office. You should know that the unauthorized use of copyrighted material is excusable if it falls under the principle of fair use. Although the law does provide guidelines for making this assessment, determining fair use is not always easy since it is a grey area of the law. Consequently, courts make decisions on a case-by-case basis. Fair Use TestCourts consider four factors when evaluating whether an unauthorized use of copyrighted material is fair. The following factors are guidelines under the Copyright Act are (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes: Courts consider whether the use is transformative. For instance, was the purpose of the new use transformative, did a new expression change the original work, or did the use create new information or lead to new ideas? The more transformative a new work, the more likely a court will consider it fair use. (2) The nature of the copyrighted work: Courts look at whether the copyrighted work is creative or factual and whether it is published or unpublished. Creative works, such as fiction, creative nonfiction, pictures, and graphic works, typically receive more protection. Factual works, such as history accounts and scientific works, receive less protection because of the benefit to society from the exchange of ideas . Authors have a right to decide when to publish their work, so the use of unpublished works without permission is less acceptable than using published works. (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole: Courts consider how much material was copied and was the copied material a central part of the original work. When a large portion of the entire copyrighted material is used or it includes the use of a central point, it is less likely that a court will consider it fair use. For, parody, however, it is acceptable to borrow a large portion and to use the central part of the original work. (4) The effect of the use upon the potential market for or value of the copyrighted work: A court will look closely at a use that deprives a copyright holder of income, regardless of whether the new material is competing in the same market. Important factors include the current market and the potential market. Courts may use additional factors to determine whether the unauthorized use of copyrighted material is fair. Some Court Decisions on Fair UseCourts evaluate fair use on a case-by-case basis. The following are cases in which a court ruled that an unauthorized use was fair: (1) Reproduction of images into thumbnails to display on search results pages was fair use because the alteration of the image was transformative, and therefore, it outweighed the commercial benefit received by Google. (2) A biographer’s quotation of 16 unpublished documents was fair use because it comprised no more than 1 percent of Richard Wright’s unpublished documents and it was for an informational purpose. Fair Use Lawyer Free ConsultationIf you are here, you probably have a fair use issue you need help with. If so, call Ascent Law for your free consultation (801) 676-5506. We want to help you.
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About MeIn 2009 I was creating marketing channels for barbie dolls in Nigeria. Spent a weekend implementing dogmas in Naples, FL. Won several awards for writing about toy trucks in Mexico. Spent 2001-2007 analyzing deodorant in Pensacola, FL. Spent 2001-2004 researching heroin in Miami, FL. Enthusiastic about writing about clip-on ties in Naples, FL. Archives
June 2019
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