Just When is Fair Use Truly Fair?
By Heather Faucher | Posted on September 18, 2009 | Filed Under Copyrights
Copyright infringement refers to the unauthorized or unlicensed copying of a copyrighted work. Copyright law exists to provide protection to authors, artists, and developers or other copyright holders so they can make their livings off of their copyrighted work without fear that others will steal or copy their work for their own commercial or inappropriate use. One potential defense for those accused of copyright infringement is that of “fair use.” The fair use doctrine came into existence due to a succession of court decisions over the years that was later codified into U.S. law in Section 107 of the Copyright Law.
Sometimes it’s difficult to define just what constitutes fair use according to this law. Unfortunately, the truth of the matter is that fair use can be best described as a murky land with invisible and hard-to-define boundaries. Especially with the ever-increasing expansion of cyberspace. So how can you tell just when fair use is, in fact, fair? Well, the best method is, of course, to hire an experienced copyright attorney to go over the facts of your case. Barring that, though, you can consider the following four factor fair use analysis and how the factors apply to your specific situation.
1. What is the character of the use?
Basically, this factor takes a look at just how you intend to use the work you wish to reproduce. Will your use be nonprofit, educational, personal, or commercial in nature? Are you using it for purposes of criticism or commentary, or perhaps for the purposes of parody? Perhaps you intend to engage in some otherwise “transformative” use. Nonprofit, educational, and personal purposes tend to receive the most weight in copyright infringement cases. The core fair uses of criticism, commentary, newsreporting, parody, and otherwise “transformative” uses tend to be those most staunchly protected by the Courts. Commercial use, of course, tends to be viewed in the harshest light, with ruling typically erring on the side of the copyright holder rather than the person seeking to profit from the other’s copyrighted work.
2. What is the nature of the work to be used?
If the nature of the work you want to use is fact-based or published, that tips the scale in favor of fair use, while imaginative-based or unpublished work will tend to tip toward requiring permission of the copyright holder. Works that involve a mixture of fact and imaginative (such as true crime novels that mix fact and fantasy regarding real-life crimes) don’t really tip to either side of the scale.
3. How much of the work will you use?
This factor can be a loaded one. Are you going to use a “small amount” or more than a “small amount” of the work? How the heck do you define a “small amount” in regards to copyright law, anyway? If the first factor weighed in favor of fair use (such as copying an entire work for use in an educational setting, like a classroom), it may well be permissible to copy the entire work. However, if a business wants to quote a work for commercial purposes, they will likely have to limit the quote to a much smaller portion than a professor using the work for educational purposes would.
4. What effect would this use have on the market for the original or for permissions if the use were widespread?
This factor can be even more fluid. Under certain circumstances, it can weigh the heaviest for or against fair use. Under others, it weighs nothing! It all comes down to how the first three factors panned out and this factor is most concerned with the question “If the use were widespread and not fair, would the copyright holder lose money due to the use?” If the use is fair, the copyright holder wouldn’t be losing anything because he or she would not have been entitled to make any money off the work anyway.
Of course, considering the conclusion you are attempting to reach (assuming the use is not fair when trying to reason whether it is fair) is known as “circular reasoning” in the school of logical argument. Because of that, Courts will first consider the first three factors before even thinking about the fourth. If the first three factors lean toward fair use, Courts will not let the fourth factor alone make a use into copyright infringement. On the other hand, if the first three factors seem to indicate that copyright infringement exists, Courts will consider lost revenues under the fourth factor. This doesn’t engage in circular reasoning because they have already reached the conclusion that a use wasn’t fair use.
When you include in your assumptions the very conclusion that you are trying to reach (you assume a use is not fair in the process of trying to figure out whether it is fair), you violate a principle of logic – you engage in “circular reasoning.”
Sound simple? Yeah, probably not. You’ll probably be best served contacting one of those experienced and reputable copyright law attorneys to be on the safe side!!!
Learn how to copyright. You’ll be glad you did.
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Tags: copyright infringement, Copyrights, fair use
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