What is Fair Use?

Fair use is a defense to copyright (or trademark) infringement.  A person (a defendant in a lawsuit) that takes up this position is admitting, for the purpose of the defense, that he or she did infringe the owner’s copyright, but that such a use constitutes a fair use of the material.  The reason that the use is or may be fair relates to Constitutional free speech rights.  This, however, does not mean that all such uses are a fair use, nor that the assertion of  fair use will always result in a successful defense to infringement.  Rather, to put forth a fair use defense is to assert the issue of speech rights into the argument.  In a lawsuit, the court then decides if  the act constitutes a fair use or not.  This decision is made by the court, the judge, by balancing certain statutory factors.  No single factor is dispositive (theoretically at least).  Generally, the judge will analyze the facts, apply them to each factor, consider which party is favored for each, and then come to a decision by balancing the overall result of the analysis.

 The statutory fair use factors are: 

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

 ~ 17 U.S.C. § 107 Limitations on Exclusive Rights:  Fair Use  (emphasis added).

In turn, these factors are defined by case law that has developed over time.  A few interesting cases to consider for research on the interpretation of the factors are:

Blanch v. Koons, 467 F.3d 244 (2nd Cir. 2006) 

Rogers v. Koons, 960 F.2d 301 (2nd Cir. 1992) 

Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) 

Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) 

American Geophysical Union v. Texaco, 60 F.3d  913 (2nd Cir. 1994) (amended 1994 & 1995) 

Sony v. Universal City Studios, 464 U.S. 417 (1984) 

 

Related:

Fair Use (U.S. Copyright Office) 

Infringement and Fair Use (ArtUntitled.com)

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