Fair Use Law: Everything You Need to Know

The fair use law refers to copying of material that is copyrighted with “transformative” purposes, including commenting, criticizing, or parodying. This type of use doesn’t have to be permitted from the copyright owner, since it’s considered “fair use”.

This law is a defense against copyright infringement claims.

What is Fair Use?

The term “transformative use”, however, is often deemed ambiguous or vague, and a considerable amount of time and money has been spent in an attempt to define exactly qhat constitutes fair use.

There are indeed no distinct and strict rules. Judgement is based largely on general guidelines and court decisions. Those who created this law and exception did not want to limit the definition of this law, and thus can be a highly subjective decision.

Fair use analysis tends to fall into one of two categories:

  1. Commentary or criticism
    1. This includes comments about and criticizing of copyrighted work e.g. book review
    2. The principle of this rule is that the public receives some sort of benefit from your review
  2. Parody
    1. A parody is a piece of work that ridicules another by mocking it in a comical way
    2. By its nature, a parody borrows from the original work being parodied
    3. Unlike other types of fair use, this extensive use of the original work is permitted for a parody to be able to refer to or be a mockery of the original.

Fair Use in Copyright Law

The sole rights decided by the Copyright Statute are restricted by several constitutional and Legal restrictions on copyright law. The most well-known of these restrictions is "fair use". The Copyright statute itself sets forth over ten separate limitations on copyright regulation.

Nevertheless, the conditions of units 106 and 106A, the fair use of a work that is copyrighted, as well as such use by imitation in phonorecords or copies or by any other way mentioned by that part. This includes things like news reporting, criticism, comments, teaching (along with numerous copies for classroom usage), scholarship, or research, is not a breach of copyright. In deciding whether the usage created of a work in any case is a fair use, the factors taken into consideration will be the following:

  • the resolve and character of the usage, plus whether such utilization is of a nonprofit educational or is for purposes commercial nature
  • the characteristic of the work being copyrighted
  • the substantiality and amount of the share utilized in relation to the work being copyrighted
  • the result of the usage upon the possible marketplace for or worth of the work being copyrighted

What Work Does Copyright Protect

A copyright serves its role for protection. For instance, under Title 17 of the U.S. Code, owners of copyrighting have the entitlement to regulate the usage of their original work. The owner has the privilege to, copy, show, make byproducts, or place the work in the community for people to see. This rule goes for both published and unpublished works fastened in a concrete means.

Creative works consist of:

  • Literature like fiction and nonfiction work
  • Music
  • Films and other audiovisual productions
  • Sound recordings
  • Choreography and Pantomimes
  • Illustrative, sculptures, and graphic
  • Architectural designs

Ideas and facts are not applied when it comes to copyright laws; pen names, names, titles, or mottos; extemporary dialogues; blank documents and standardized work; and government works. Although copyright guideline does not defend ideas and facts, copyright does bring protection to the author's phrasing  and their form of expression.

Fair Uses of Copyrighted Material

Under the Copyright Act, the fair use of copyrighted material without permission is allowed when used for the following purposes:

  • Criticism
  • Comment
  • News reporting
  • Teaching, includes making copies for use in the classroom
  • Scholarship and research
  • Parody

The use of copyright does not grant the right to use the copyrighted work in its whole more exactly the use needs to be restricted to citing, excerpting, summarizing, and making educational duplicates of the information.

Purpose and Character of the Use

If you intend to make a profit or other commercial benefit from your copies or displays then the purpose and character of the use weighs against fair use. Figuring out what is transformative—and the degree of transformation—is not easy. Even the courts look at whether the use is transformative.

Nature of the material copied

Since the spreading of facts or information helps the community, you have more flexibility to copy from works that are factual like biographies than you do from fictional works for instance, novels or plays.

You could get a greater case of fair use just by copying the material from a work that is published than a work that is unpublished since the scope of fair use is thinner for unpublished works. This is because a writer has the right to regulate the first public manifestation of their expression. Writers have a right to choose when to distribute their writings, so the use of unpublished works without consent is less up to standard than using works that are published.

What If You Acknowledge the Source Material?

Sometimes individuals mistakenly believe it’s acceptable to use someone’s work (or part of it) if a salutation is given. Recognition of the source material (for example quoting the photojournalist) could be a thought in a fair use resolve, but that does not mean it will protect against a claim of violation.

Does It Help to Use a Disclaimer?

A disclaimer is a report that “separates” your work from the work that you have copied. In adjacent cases where the court is having a hard time making a fair use willpower, a prominently placed disclaimer could get a positive effect. This happens when the court observes your use but mostly a disclaimer by itself will not aid particularly if the fair use influences weigh in contrast to you.

Amount of the material copied

The more you are making the copies and the closer the copy is to the initial, the less probable it will be considered as fair use.

Too Small for Fair Use: The De Minimis Defense

There are certain situations, when the quantity of material that is being copied is so minor (or “de minimis”) that the court permits it and a fair use study is not necessary.

Commercial effect

Commercial Effect deliberates the degree of harm the copies have on the performer’s or author’s marketplace. Doing things such as depriving an owner copyright of income is extremely likely to cause a lawsuit.

The “Fifth” Fair Use Factor: Are You Good or Bad?

After you get a chance to review some fair use cases, don’t be surprised to find that they sometimes disprove one another or conflict with the rules articulated in this chapter.

Fair use involves judgments that are subjective, and normally affected by factors like a judge or jury’s personal sense of wrong or right. Even though the Supreme Court has specified that vulgarity is not a fair use issue, you should be aware that an ethically offended jury or judge may justify its result against fair use.

First Amendment

It is uncertain if the first amendment has the power to grant an extra advantage to make copies unauthorized of protected works past that granted by the principle of fair use.

Even though commentators have contended that a distinct defense contrary to a claim of copyright violation does occur, courts have not decided.

Compulsory Licenses

Usually, the limited rights decided by the United States Patent Law might be worked out as the copyright owner feels is right.

If the writer of a document does not want the document printed or circulated, the writer as the copyright holder is able to prevent distribution and publication.

The copyrights can be controlled by means of the licenses. It just depends of the copyright owner wishes.

These necessary licenses permit third parties to perform, copy, or distribute guaranteed kinds of projects deprived of the patent proprietor's consent, in swap for which the third parties will have pay a royalty amount that is predetermined.

Most of these required licenses are extremely imperfect, and apply in only five situations:

  • The manufacture of new sound recordings founded upon a present nondramatic musical recording
  • The recital of a nondramatic harmonious film in a jukebox
  • The concurrent retransmission of television indications by cable television operatives
  • The display, recordal and performance of works by public televising units
  • A temporary right to recovery television signs through satellite to family satellite dishes
  • More willingly than taking benefit of any compulsory licenses, a person needs to check with a well-informed copyright lawyer

Fair Use Checklist

The Fair Use Checklist and differences on it have been broadly utilized for many years to aid educators, librarians, lawyers, and many other users of copyrighted works control whether their measures are within the limits of fair use under U.S. copyright regulation (Segment 107 of the U.S. Copyright Law).

The following is a PDF of the Fair Use Checklist for your own usage: https://copyright.columbia.edu/content/dam/copyright/Precedent%20Docs/fairusechecklist.pdf

Benefits of Using the Checklist

An appropriate use of this checklist should involve two reasons. The Fair Use Checklist should help you to focus on factual circumstances that are significant in your assessment of fair use given that the scope and meaning of fair use rest on the truths of an assumed condition, and alter some facts may alter the analysis.

The checklist is good because it can offer a vital mechanism to record your decision-making procedure because upholding a record of your fair use inquiry can be serious for starting good faith; make plans to adding to the checklist the present date and notes concerning your plan.

The Checklist as a Road Map

When you use your checklist, and apply it to your circumstances, you are liable to check above one box in each row and even check boxes within the columns. There are a few boxes checked that will favor fair use and others might face fair use.

A vital matter is whether you are acting sensibly when it comes to checking boxes. Plus, with the decisive query being whether the cumulative weight of the aspects increases or detours you from fair use. It is best if you consider the relative convincing strength of the circumstances. Also look to see as if the general circumstances lean most persuasively for or against fair use.

Caveat

You will use the checklist as a tool that will assist you when assuming a fair use examination. The four issues recorded in the Copyright Decree are only rules for determining as to if a usage is fair.  Every one of the factors need to be looked at carefully in analyzing any detailed use. 

You are not going find any kind of magic formula; a math method to the submission of the four factors do not need to be used. Depending on the facts of a case, it is likely that even though three of the factors would incline to prefer a fair use discovery, the fourth factor could be the most significant one in that case, steering to a conclusion that the usage might not be looked at as fair.

Whether you are an artist, author, or screenwriter, an attorney should help you verify whether segments of the work you want to use drops under the fair use rule. An accomplished attorney can try to stop disputes before they occur, they can likewise assist with any lawsuit problems you might face.

If you need assistance with Fair Use Law, you can post your legal need on UpCounsel’s marketplace. UpCounsel receives merely the top 5 percent of attorneys to its site. Attorneys on UpCounsel come from law schools all over the nation.