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Understanding Fair Use in Copyright Law

Copyright law allows owners exclusive right to the use of their creative works. But in certain instances covered under fair use copyright law, others may be allowed to legally use portions of your works.

In the United States, fair use doctrine permits limited unlicensed use of copyrighted material without acquiring permission from the rights holders for certain purposes. These include commentary, criticism, news reporting, research, teaching, library archiving, scholarship and search engines. Determining fair use involves consideration of these four basic factors:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes: This factor looks at whether the use of the copyrighted work fulfills the stated intention of copyright law, which is to stimulate creativity that enriches the general public via knowledge or the arts. Justified fair use demonstrates that public enrichment and cannot be for the sole purpose of personal profit.
  2. The nature of the copyrighted work: The nature of the copyrighted work comes into play primarily when it's deemed as belonging in the public domain. That's why facts and ideas cannot be copyrighted - only the particular, tangible expression of those facts and ideas. However, social usefulness of freely available information can be levied against a copyright claim. For instance, Time magazine purchased and copyrighted the Zapruder family footage of President John. F. Kennedy's assassination. But when the media giant attempted to block reproduction of stills from the film in a history book, Six Seconds in Dallas, written by former journalist Josiah Thompson, , the copyright was not upheld in part because judges concluded that "There is a public interest in having the fullest information available on the murder of President Kennedy. Thompson did serious work on the subject and has a theory entitled to public consideration… The book is not bought because it contained the Zapruder pictures; the book is bought because of the theory of Thompson and its explanation, supported by Zapruder pictures."
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole: This factor allows for the use of a small quantity or percentage of an original copyrighted work for certain purposes. For instance, quoting a few lines of a book for purposes of a book review generally is considered fair use in terms of the amount of copyrighted work used. However, substantiality can be used to defy a fair use claim. An example is the denial of an attempt to use fewer than 400 words from President Gerald Ford's memoir by a political opinion magazine. The magazine's use of those words was deemed an infringement because they represented the "heart of the book," and thus, substantial.
  4. The effect of the use upon the potential market for or value of the copyrighted work: If an alleged infringement is deemed to have caused no significant harm to the copyright owner's market or hindrance to the owner's ability to exploit the work, it may be considered legitimate fair use. In such cases, the burden of proof rests not on the defendant for commercial uses, but on the copyright owner for noncommercial uses. Of course, exceptions exist. Courts recognize that certain types of market harm can be covered by fair use, such as when a critical review or parody of a book or film negatively affects sales. 

Determining the difference between copyright infringement and fair use can be a complex matter. If you believe your protected work is being used illegally, or if you're unsure whether your planned use of someone else's work safely falls under fair use doctrine, contact an experienced copyright attorney with Orlando's Daniel Law Offices at 407-841-8375.

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