What Use Is a Fair Use

Copyright Law sets forth an exception to infringement for fair use.  But what is a fair use is often confusing.  Circumstances often dictate the extent to which this exception is applied.  The statute provides express limitation on the exclusive rights granted…. for the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

         (1)         the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
         (2)         the nature of the copyrighted work;
         (3)         the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
         (4)         the effect of the use upon the potential market for or value of the copyrighted work….
 An example that comes to mind is use of a picture.  While generally, the photographer has a copyright and therefore controls the use and distribution of the picture, the right to post the picture for purposes of education, news or editorial comment would be considered a fair use.  However, using the picture for your masthead on your website or blog, without license or permission, would be infringement.  In a recent case, the use of the Baltimore Ravens NFL logo for less than 10 seconds in a historical documentary was found to be a transformative fair use despite its commercial nature.
 A more difficult situation arises when a derivative work is created.  This refers to the ability to use an existing work as the genesis for a new creation.  The exclusive right to use, copy and distribute belongs to the author of the existing work.  A derivative license for its copy or use would be required.  However, in situations where the new work is found again to be transformative, such is not required.  The parody of the Roy Orbison song “Pretty Women” by Luther Campbell and Two Live Crew was allowed by the U.S. Supreme Court as a fair use.  In finding Campbell’s work to be transformative, the Court noted the parody had no effect on the potential market or commercial value of the Orbison song.
 Finally, many artists are creating works by either sampling or mixing the original works and thereby transforming the original nature of the work.  Recently, the use of a short segment of the Four Seasons musical group’s singing performance on the Ed Sullivan Show during the performance of Broadway hit “Jersey Boys” was found to be a fair use.  The piece was included for historical purpose and did not affect the value or market for the original work.  In fact, the party alleging the infringement was ordered to pay the other side’s attorney fees.  See Blog link for further case information.
 For a non-commercial use, the courts will be more lenient in determining purpose, such as editorial comment, criticism, etc., and amount used.  If the use is commercial, then it’s imperative that it in some way, such as a parody, remix etc, the use be transformative in that it not affect the value or market for the original work.  Intellectual Property Law remains very fluid and the best course is to check with your legal counsel when presented with a copyright issue.
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