What is Fair Use?

People often ask me can I use this or that work of a copyright owner. Basically, as a copyright attorney, there is a legal concept called ‘fair use’ which allows non-copyright owners to use copyrighted works in certain situations.

What are the situations? Well, this is one of those it depends, as there is a 4 part test.

1. Purpose and character of the use.

• commercial nature (- for fair use) or nonprofit/educational (+ for fair use)
• commentary, criticism or news, as this is a + factor for fair use (the First Amendment kicks in here).
• transformative (adds something new) (+ for fair use) vs derivative (- for fair use)

2. Nature of the copyrighted work (factual (+ for fair use) or creative (- for fair use))

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole (less used (+ fair use) and more used (- fair use))

4. The effect of the use upon the potential market for, or value of, the copyrighted work (less of market effect (+ fair use) and more market effect (- fair use))

These factors are weighed in each situation to determine if it is a fair use, or not. If you are right and it is fair use, then you can use the copyrighted work without the permission of the copyright holder, but if you are wrong, then you may have some significant legal problems (if the copyright holder decides to pursue the matter).

The internet has really brought this issue to the forefront, and it is a good example of when technology and law come together to create fodder for disputes

More information here…

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