Copyright Fair Use Laws
The Copyright Act of 1976 (the copyright laws of the United States) gives the creator of a work five exclusive rights:
the right to make reproductions of the work;
the right to publically display the work;
the right to publically perform the work;
the right to distribute the work; and
the right to make or authorize derivative works based on the original
Generally, when someone who has not received the permission of the creator exercises one of those rights, that person is infringing on the rights of the creator and can be liable for copyright infringement. However, the Copyright Act includes some defenses. There are exemptions from the infringement provisions, along with “statutory licenses,” which allow an infringer to pay a set fee for the use of the material, even without specific permission. One of the broader defenses, however, is fair use.
What is Copyright Fair Use?
The fair use provision is meant to promote discussion, commentary, and education regarding works otherwise covered by copyright law. Essentially, it allows users of a copyrighted work to argue that their use is not infringement because it does not create the kind of threat to a creator’s right to be compensated for his work that copyright law protects. For example, fair use generally allows things like parody, or quotation in an editorial to facilitate commentary. Fair use is codified in the Copyright Act through a set of four factors the court will balance to determine if the use of the work is fair or should be penalized as infringement.
What is considered Fair Use?
The Copyright Act indicates that fair use applies to “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” but there is no category of use that is automatically fair under the law. There is a myth that all noncommercial use is fair use, which is not true. All uses are subject to a four-factor balancing test.
The four factors that the Copyright Act directs courts to consider are:
the purpose and character of the use (including whether it is commercial and whether the derivative work is transformative);
the nature of the work (i.e. whether it is fiction or non-fiction);
the amount of the work used in relation to the whole; and
whether the derivative work can replace the original work in the market.
While the commercial nature of the use is important, whether the use transforms the work is often a sticking point for the court. The Supreme Court has indicated that a use is more likely to be fair if it transforms the purpose or meaning of the work. For example, a parody song made about a toy franchise has a purpose of commentary about the social effects of the toy, rather than the toy’s original purpose of entertaining children. However, the courts have stated that the work used should be the subject of the parody, rather than the vehicle for parody of an unrelated subject.
Courts are also sensitive to the possibility of the allegedly infringing work being a substitute for the original work in the market, so that the copyright holder would lose income or the ability to exploit his own work. This threat grows as more of the original work is used. Therefore, uses that incorporate all or most of the work without significant transformation can run the risk
The Fair Use Defense
If you are the subject of a challenge from a copyright holder and believe that you have the right to use the work under the fair use provision, you should consult with a copyright attorney right away to determine whether you can take advantage of the fair use defense. Alternatively, if someone is using your work, you should consult with an attorney before taking any steps to stop the use, because the possibility of a successful fair use defense can affect whether the investment in a lawsuit is worth it.