The fair use doctrine has grown significantly in importance with the development of the internet, making up a great deal of the public discourse surrounding the use of copyrighted materials. Given the unceasing nature of the internet and the high volume of media available for piracy, many questions have arisen as to the definitions and implications of fair use, especially in relation to the public domain. Below, we address many of these questions and the legal implications for Chicago businesses trying to maneuver the terrain of fair use.

What is Fair Use in the Legal Sense?

Fair use is, quite simply, the legal allowance for the use of copyrighted material without the express permission of its creator or the payment of royalties. Inkling the U.S. Copyright Act, it generally allows for the unauthorized use of material such as artwork, literature, music, and videos, if it meets certain criteria.

In the United States, whether an activity qualifies as fair use under copyright law is determined by four factors. First, the purpose and intention behind the use must be considered. Second, the nature of the original work—i.e., whether it is factual or fictional—is taken into account. Third, the amount and substantiality of the portion used in relation to the copyrighted material as a whole must be determined. And, fourth, to what extent the use affects the economic market for the original work is taken into consideration.

How is Fair Use Different from Public Domain?

The fair use doctrine applies to works that are still under copyright and thus not in the public domain. Public domain works are those that are no longer under copyright protection due to expiration or because they do not meet the legal criteria for copyright status. It is not legal to use works that are still under copyright without permission, even if it is a small part of the original work.

On the other hand, once a work enters the public domain, it may be reproduced, distributed, altered, built upon, or sold without the need for permission or payment. However, while no permission is required for using public domain works, it is essential that any use of public domain content is accompanied by a clear notice that the material is in the public domain.

What Common Scenarios Qualify as Fair Use?

There are many scenarios in which using copyrighted materials might be considered fair use. For example, quoting a portion of a song for educational purposes, or the use of a copyrighted photograph in a news article—as long as the use satisfies the four factors listed above—could be deemed a qualifying use.

Similarly, parody of a copyrighted work, or the appropriation of elements from one work to create another work, is generally considered a fair use under copyright law. Drawing inspiration from copyrighted works is an age-old practice that has long been considered the legal equivalent of giving credit where credit is due.

When is It Necessary to Seek Legal Guidance?

Given the subjective aspects of the fair use criteria and the individual considerations inherent in each instance of market harm, businesses looking to use copyrighted material are wise to seek the advice of a legal professional for guidance.

In the Chicago area, UpCounsel provides legal counsel for businesses navigating the fair use landscape. Its network of experienced attorneys provides high-quality, cost-efficient solutions for businesses concerned with the legal implications of using copyrighted artwork, literature, music, and videos.

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