Without a shred of doubt, copyright law envisages the protection of the copyright holder’s rights. However, despite having these exclusive rights in place, certain instances may be limited. The most common limitation where the exclusive rights of a copyright holder can be limited fall under the doctrine of fair use- a defense against copyright infringement.
That being said, here is a brief elucidation of what constitutes fair use.
What is Fair Use?
Simply put, fair use is any copying of copyrighted material that is done for a limited and transformative purpose. It is codified under section 107 of the Copyright Act, which provides for the various types of reproduction that fall under the limb of fair use.
Some common fair uses include commentary and criticism, parody, news reporting, and teaching.
Commentary and Criticism
The doctrine of fair use comes into play when you are commenting or critiquing any copyrighted work. In such a case, you are allowed to reproduce some of the work in order to achieve your goals.
The rationale behind this is to ensure that the wider public can benefit from your commentary, which is enhanced by including some of the copyrighted material in your work.
Parody
A parody is defined as any work intended to ridicule by comically imitating a well-known work. The nature of a parody typically demands that some original work is copied. Therefore, in such a case, a claim against infringement can’t be instituted based on this.
What Factors are Considered when Deciding Fair Use?
The fair use doctrine tends to be controversial; therefore, the court undertakes specific steps to ascertain whether a particular use is protected under the fair use doctrine. The following are some of the four key factors:
Nature and Purpose of the Use
The nature and purpose of the use is the primary indicator of whether a particular use is protected. The main issue you should consider is whether the material has been used to develop a new creation or whether it has been directly copied into another work. For you to escape liability, copying must be transformative. In other words, fair use can only be imputed once you have transformed what you have taken.
Also, it is imperative to ask yourself whether you intend to use the material for commercial or non-educational purposes. More often than not, the court tends to favor the use of copyrighted material done for non-educational purposes. On the contrary, the use of copyrighted material for commercial purposes may weigh against you.
Nature of the Original Work Being Used
You are accorded more leeway to copy if an original work is factual or informational than fictional. The rationale behind this is that the dissemination of information is considered in the public interest.
Also, copying will be considered fair use where it is done from a published work rather than an unpublished work. The fact that the author has control over the first public appearance of his or her expression broadens the scope of fair use.
The Amount and Substantiality of the Portion Taken
This consideration is grounded on the assertion that the more you take original work, the less likely your use of the portion will be considered fair. However, you can’t escape liability by copying a small part of the work if the part taken is an integral piece of the work. In other words, you may be liable for infringement once you take the best memorable parts from the work.
However, this rule doesn’t cover works categorized as parodies. This is because parodies need to borrow quite a bit from an integral part of the work for the audience to understand the parody.
The Effect of the Use Upon the Potential Market
The overall effect on the potential market of the copyrighted material is often taken into consideration. This means that if your work deprives the copyright owner of income or undermines an existing or potential market, then you may be liable for infringement. The same applies even if you are not competing directly with the work.
Again parody offers a different analysis when it comes to fair use. This is grounded on the fact that, at times, parodies can diminish or destroy the market value. However, the court often finds parody to be within the framework of fair use.
The fair use doctrine brings forth several controversial issues. Understanding the scope of the doctrine may prove to be an imperative undertaking. Contact Larson and Larson today for more information on this.