Fair use refers to the reproduction of any copyrighted material for transformative purposes, usually resulting in the presentation of existing material in a different context to create new insights or perspectives. Fair use defense is meant to protect both original content creators and those falsely accused of copyright infringement. Originally set forth to promote the use of existing copyrighted materials for educational use and societal benefit, fair use policy allows reproduction of a work without the owner’s permission for educational purposes or criticism and commentary. Additionally, fair use is meant “…to promote the progress of science and useful arts” (U.S. Const. art. I, § 8, cl. 8) and fair use policy protects any such use.

What is considered fair use?

There are no hard and fast rules when it comes to determining if a work is protected by fair use. However, under the Copyright Act, there are four major considerations when a case involving fair use and possible copyright infringement makes it to the courts:

  1. Purpose and Character of the Use– Any use that is meant to draw a profit is likely to be an infringement of copyright. However, though news reporting is likely to draw a profit, it is still considered fair use as its exposure is considered beneficial to society. Criticism and commentary on an existing work is generally regarded as fair use in which society benefits from a new perspective or critical analysis. Reproduction for scholarly or educational purposes is generally regarded as fair use.
  2. Nature of the Copyrighted Work– The nature of the work is a smaller factor in fair use decisions but is no less important. Reproduction of a fictional work, or one considered creative in nature, is more likely to be an infringement of copyright. Any work reproducing factual information that can be found in a variety of formats and contexts is likely protected by fair use. A court will also consider whether the original work remains published or unpublished.
  3. Amount of Copyrighted Work Used– The most unclear part of a fair use decision relates to the quantity of copyrighted work used in a reproduction. There are no official guidelines regarding the amount of work one may use without infringing upon a copyright. However, even smaller reproduced portions or excerpts of an original work can qualify as infringement. Generally, limited use of copyrighted material (meaning just enough so as to accomplish the purpose of the reproduced work) can be considered fair use.
  4. Effects of the Use on Potential Markets– The effect a reproduction can have on the value of an original work is essential to determining an infringing use and is perhaps the most important factor in a fair use decision. In other words, this factor is related to the economic or financial impact that reproduction of copyrighted material can have on the value of the original work. Any use that increases the chances of profitability of the original work is likely to be considered fair use.

The experienced attorneys at the Kendrick Law Group can help you determine whether your work is considered for fair use protection or possible copyright infringement. Call today to schedule your consultation and learn more about how our attorneys can help you.

Important Resources Related to Fair Use in This Blog:

Copyright Act § 107: https://www.copyright.gov/title17/

U.S. Constitution Article I, § 8, clause 8: https://constitutioncenter.org/interactive-constitution/articles/article-i

Co-Written By: Hunter Kelly, Legal Assistant