Understanding Fair Use for LA Businesses
As a business owner in Los Angeles, you’re likely knowledgeable about the legal landscape3 min read
As a business owner in Los Angeles, you’re likely knowledgeable about the legal landscape. One particular area that could be confusing to tackle is the concept of fair use. In this article, we’ll explain all of the details of fair use you need to know to set your business up for success.
Fair use is a defense to copyright infringement in the United States that is enshrined in Sec. 107 of the United States Copyright Act. Fair use can allow the use of copyrighted material without permission from the copyright holder in some cases. Going back to the founding of the United States, cases from 1841 forward have recognized the importance of fair use and its function in allowing certain copyrighted material to be used.
The purpose of fair use is to ensure that the public benefits from the use of copyrighted material. If certain works are unduly restrained, then they cannot be enjoyed and may become lost. To provide a barometer, fair use cases are decided on a case-by-case basis and evaluated carefully. Because of the subjective nature of the defense, it can be tricky to know how fair use will be seen by the court.
To make fair use feasible, four criteria were established to determine when use of a copyrighted material was fair. First, courts examine the purpose of the use. Fair use considers not only the immediate purpose of the use but also the motive for the use. If the purpose is commercial in nature, then the likelihood of fair use decreases.
Second, courts look at the nature of the copyrighted material. Have you used a whole work or a small portion of it? Was the scope of the use appropriate? The nature of the material will be evaluated in a vacuum, free from other considerations.
Third, courts look at the amount of the material borrowed. Borrowing only a small portion of a work would be more likely to be fair use, as would using a smaller quantity of the work. The amount taken needs to be compared to the quantity of the work itself.
Fourth, the effect of the use is taken into account. Courts will look at whether the use of the material would impede on potential sales or the original purpose of the work.
Together, those considerations make up the four criteria for ascertaining if a use of a copyrighted material was fair. These criteria serve as a guideline, but ultimately, at the end of the day, courts decide whether the use of a copyrighted material was fair or not.
There are a number of notable fair use cases that business owners in Los Angeles should be familiar with. In the landmark case of Harper & Row v. Nation Enterprises, The Nation magazine used a large portion of a memoir by then-President Gerald Ford without permission. The Supreme Court held that the magazine’s use of the work was not fair despite the fact the magazine was using Ford's memoir to break a news story. Instead, the Court noted the amount taken was too much and that the purpose of the use could be seen to compete commercially with the work in question.
Conversely, in a more popular case, the United States District Court in New York held that the then-upstart Google’s use of copyrighted work to generate search results was fair. Google sought to build a library of copyrighted works to better inform its search results, but the Second Circuit found that the search engine constituted fair use as it did not unreasonably affect the market value of the works in question.
As you can see, there is no hard-and-fast rule when it comes to fair use. What is fair in one case may not be fair in another. This underscores why it is critical to hire a lawyer experienced in local copyright law in Los Angeles to properly evaluate potential uses of copyrighted material.
Topics:
