Intellectual Property Fair Use: Everything You Need To Know
Intellectual property fair use can sometimes be a slippery slope in the eyes of the law. You do not want to be accused of infringing on another person’s rights3 min read
Intellectual property fair use can sometimes be a slippery slope in the eyes of the law. You do not want to be accused of infringing on another person’s rights, so it is crucial that you are fully aware of what you are and are not allowed to do with certain ideas and that you maintain an awareness of intellectual property and fair use.
What is "Fair Use"?
As noted on the United States Copyright Office factsheet on the Fair Use, the rights of copyright owners are afforded certain limitations. Among the most crucial limits is the “Fair Use” doctrine.
The doctrine of Fair Use allows the users of copyrighted work to reuse and reproduce a copyrighted work in a certain way that makes it fair. This can include criticism, news reporting, reaching, research, scholarship, and comment.
Fair Use is considered a right. Some believe that Fair Use is a small exception from protection of authors, but it is a fundamental right. It is a defense to a claim to the infringement of copyright.
It means that if you used a work and believed it to be “fair use,” you would need to be sued for infringement and then provide your fair use defense. You and your attorney providing this defense would not prevent you from needing to prove your defense in court as per a copyright infringement case.
Justice Ruth Bader Ginsburg rallied for fair use, and the Supreme Court said that fair use is a First Amendment safeguard. Similar to the First Amendment, fair use is flexible and broad and is responsive to changes.
This is why fair use is supportive of the constitutional point of copyright, which is to promote the progress of science and the useful arts.
If you take a picture of something that is copyrighted, it can sometimes count as the reproduction of that item and can be a violation of copyright.
However, there are some items when it is allowed. Title 17, Section 107 of U.S. Copyright Law names four items to think about when you are thinking if using copyrighted work is fair:
1. The character and purpose of the use, which includes if this use is commercial or nonprofit and educational in nature.
2. The type of copyrighted work, such as whether or not it is creative or factual.
3. The sustainability and the amount of the portion that is used in accordance with the entirety of the work.
4. The effect of the use based on the possible market for or the value of the copyrighted work.
The factsheet on “Fair Use” states that the difference between what is fair use and what is considered infringement in some cases are not always clearly defined. There are no certain amount of words, notes, or lines that can be taken without the owner’s permission.
Taking the time to acknowledge the source of the material will not serve as a substitute from obtaining proper permission.
All of the methods of protecting IP makes sure that the benefits gained from the use of the IP goes to the owner and not another person who is using someone’s rights.
An owner of intellectual property will need to vigorously defend his or her rights, often bringing lawsuits when there is willful and egregious infringement.
Fair use is commonly used in academics. It is what lets teachers copy a copyrighted poem or piece of literature and pass it out to a class. It also makes it possible for students to quote from a copyrighted piece when writing a paper.
Deciding if something is considered fair use is not a yes or no answer. It will require the case to be reviewed by case law in addition to the factors discussed by your lawyer who will help determine the level of risk when using the copyrighted work.
Tools to Determine Fair Use
- Thinking Through Fair Use: This is an interactive tool online from the University of Minnesota. It provides a check list of useful information regarding the four factors of Fair Use. You can generate a report at the end.
- Fair Use Checklist: This printable checklist regarding the four factors of Fair Use. This is useful document for classrooms.
- Fair Use Evaluator: This is an interactive tool that is designed to assist a user to think carefully about Fair use arguments. This tool is more independent than “Thinking Through Fair Use” tool. It is dependent on previous understanding of fair use.
If you need help with understanding intellectual property fair use, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.