Fair Use comes from Section 107 in the Copyright Act allows for some uses of copyrighted works without the need for licensing. However, they must fall under the following purposes:
- Criticism
- Comment
- Teaching
- Scholarship
- Research
Even if you claim to use it for one of these purposes, it is still possible to lose an infringement case. The court is the one who decides whether something is fair use or not, NOT the user or the author. The court uses a series of guidelines commonly referred to as The Four Factors to determine if something is a fair use or not:
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The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit, educational purposes
- The purpose of the work is usually categorized in the same way as the list above.
- The nature of the work is usually to determine whether something is transformative. Did the user dramatically change the work so that it takes on a different meaning? An example of this is parody, which is considered a form of criticism or commentary and is generally considered fair use.
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The nature of the copyrighted work
- If the copyrighted material is informational, scientific, or factual, there is generally more room to use this than artistic works. After all, facts cannot be copyrighted.
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The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- If a person uses a short excerpt from a work, it is generally less of an impact on the author and their market than if they use the whole work.
- Quantity is not always a factor, however. The courts also consider what the "heart of the work" is. If a short bass solo in a song is incredibly unique and immediately recognizable and an artist copies only that line, a court could rule that it is stealing from the heart of the work, and therefore taking away from the impact of the original work.
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The effect of the use upon the potential market for or value of the copyrighted work.
- This is often the most considered factor. If someone steals enough of a person's work that it adversely affects their market, a court is more likely to rule in the favor of the original author.
If you take nothing else away from this, know that NOTHING IS GUARANTEED WITH FAIR USE. IF YOU ARE CONSIDERING USING COPYRIGHTED MATERIAL, PLEASE CONSULT LEGAL COUNSEL.
