Fair Use Law

Understanding fair use is vital if you are a small business owner or entrepreneur engaged in creative expression on platforms like social media.

Intellectual property rights grant exclusive rights to creators and owners to control and benefit their creations.

Fair use is a legal doctrine within intellectual property law, precisely, the context of copyright. Under the doctrine of "fair use," the law allows the use of portions of copyrighted work without getting permission from the owner.

Fair use is a defense to copyright infringement. This defense means that the unauthorized use of copyrighted material is excusable if it meets certain criteria.

Although the law does provide guidelines for making this assessment, determining fair use can be challenging since it is a grey area of the law. Consequently, courts make decisions on a case-by-case basis.

What Work Does Copyright Protect?

Under Title 17 of the U.S. Code, which governs copyright law, copyright owners have the right to limit the use of their creative work.

A copyright owner can:

• Distribute
• Reproduce
• Display
• Make derivatives (sequels, prequels, or expansions of the work)
• Perform the work in public

This right applies to published and unpublished works fixed in a tangible medium. Unpublished work is a work that had few copies of it made or was not meant for distribution. A fixed tangible medium means the work can be seen or heard.

Creative works include:

• Literature
• Music
• Motion pictures and other audiovisual productions
• Sound recordings
• Pantomimes and choreography
• Pictorials, graphics, and sculptures
• Architectural designs

Copyright law does not include:

• Ideas
• Facts
• Names
• Pen names
• Titles
• Slogans
• Extemporaneous speeches
• Blank forms
• Standardized material
• Government works

Although copyright law does not protect facts and ideas, it does protect the author's phrasing or expression. Titles and slogans associated with a specific good or service are eligible for a trademark.

Fair Uses of Copyrighted Material

The Copyright Act allows the fair use of copyrighted material without permission when used for:

• Criticism
• Comment
• News reporting
• Teaching, including making copies for use in the classroom
• Scholarship and research
• Parody

These uses do not grant the right to use the copyrighted work in its entirety. Copyright limits fair usage to allow a non-owner to:

• Quote
• Excerpt
• Summarize
• Make educational copies of the material

The Fair Use Four Factor Test

Courts consider four factors when evaluating the unauthorized use of copyrighted material. The following factors are guidelines under the Copyright Act:

1. The purpose and character of the use. This includes whether such use is commercial or for nonprofit educational purposes: Courts consider whether the use is transformative. For instance, was the purpose of the new use transformative? Did a new expression change the original work? Did the use create new information or lead to new ideas? The more transformative a new work, the more likely a court will consider it fair use.
2. The nature of the copyrighted work: Courts look at whether the copyrighted work is creative or factual. Creative works receive more protection. These are fiction, creative nonfiction, pictures, and graphic works. Factual works, such as historical accounts and scientific works, receive less protection. Courts view these as a benefit to society. Published and unpublished works matter as well. Authors have a right to decide when to publish their work. Using unpublished works without permission is less acceptable than using published works.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole: Courts consider how much material was copied and if the copied material is a central part of the original work. When the use is a large part of the entire copyrighted material it is less likely excusable. If the use includes the use of a main point, it is less likely that a court will consider it fair use. For parody, however, it is acceptable to borrow a large portion and use the central part of the original work.
4. The effect of the use upon the potential market for or value of the copyrighted work: A court looks closely at use depriving a copyright holder of income. It does not matter whether the new material competes in the same market. Important factors include the current market and the potential market.

Courts may use extra factors to determine whether the unauthorized use of copyrighted material is fair.

Court Decisions on Fair Use

Courts evaluate fair use on a case-by-case basis. The following are cases in which a court ruled that an unauthorized use was fair:

• Google's reproduction of images into thumbnails to display on search results pages. This was fair use because the image alteration was transformative. This outweighed the commercial benefit received by Google.
• A biographer's quotation of 16 unpublished documents was fair use because it comprised no more than 1 percent of Richard Wright's unpublished documents. It was for an informational purpose.

The following are cases in which a court ruled that unauthorized use was not fair:

• It was not fair use for The Nation magazine to publish central parts of former President Gerald Ford's memoir before its publication. It substantially decreased the book's marketability.
• Paraphrasing a large part of author J.D. Salinger's unpublished letters in a biography was not excusable under the fair use doctrine. The general public would view them in this format for the first time. The paraphrased material was a central part of the biography.

Need Legal Advice? An IP Attorney Can Help

Whether you are an artist, author, or business owner, a lawyer can help you determine whether portions of the work you want to use fall under the fair use principle. The U.S. Copyright Office provides guidance on fair use. The office does not make official determinations of fair use. A skilled attorney can prevent infringement cases before they happen and assist with specific advice regarding fair use. Contact a local intellectual property attorney today and get some peace of mind.