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What is “Fair Use” of a Copyrighted Work?

The term “fair use” refers to the limited permitted copying of copyrighted material without receiving permission from the copyright holders. It is used as a defense against copyright infringement, and if use of a copyrighted work is deemed to be “fair use”, then the action is not considered illegal.

The Copyright Act of 1976 cites four factors it uses to determine whether the use of a copyrighted work falls under the category of fair use.

The first factor looks at the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes. The first aspect looks at the character of the use, that is, whether the work is “transformative” in nature. This determines whether the new work adds anything to the original to further its purpose or add something original. A work that fails to do this is more likely to be seen as copyright infringement.  The second aspect is whether the use of the copyrighted material resulted in commercial gain. This gain does not necessarily need to be financial in order to be classified as commercial. For example, the reproduction and distribution of a copyrighted book for the purpose of expanding one’s book club would be classified as commercial, even though the only gain in this instance may be more club members and a deeper discussion of the book.

The second factor looks at the nature of the copyrighted work. This factor determines if the copyrighted work that is copied is factual or fictional and if the work is published or unpublished. Since the law recognizes a need to disperse factual information over fictional information, there is more leniency when copying factual information. Secondly, if the copyrighted work is unpublished, its use will be less likely to be fair use since the law maintains an author’s right to control its public appearance.

The third factor is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. What this factor looks at is both the quantity and quality of the portion of the work that is used. While using a majority of any copyrighted work will make it difficult to claim its fair use, if “the heart of” the work is used, the quantity of it becomes less relevant. For example, a 300-word excerpt from President Gerald Ford’s 200,000 word memoirs that specifically noted his decision to pardon Richard Nixon was determined to be the heart of the work and was therefore not be eligible for fair use. See Harper & Row v. Nation Enterprises, 471 U.S. 539.

The final factor is the effect the use has on the potential market or value of the copyrighted work. Essentially what this factor seeks to determine is what impact the fair use would have on the copyright owner’s marketability. When a use is commercial, there is likely a negative impact on the marketability, which would place the burden of proof on the new user. If the market harm cannot be easily presumed, then the burden of proof shifts to the copyright holder.

If you are a copyright owner and you believe someone is improperly claiming fair use of your copyright, or you believe you are being wrongfully prosecuted for copyright infringement, you should consult our intellectual property attorneys to learn your rights.