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|Albert Minn is a patent attorney with 10 years of experience practicing before the United States Patent and Trademark Office.|
When can I use copyrighted materials? What liability do I incur by using copyrighted materials in my original work? Are there any situations where I can use copyrighted materials? Section 107 of Title 17 of the United States Code provides the statutory framework for identifying and determining fair use of copyrighted materials, which can be used as a defense against claims of copyright infringement.
Specifically, 17 USC §107 states, “[t]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified, … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” But how does one determine whether a particular usage is a “fair use”? Section 107 of the Copyright Act also details four factors that should be considered when determining whether a particular use constitutes a fair use. Those factors include:
- the purpose and character of the use;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Purpose and Character of Use
Courts address the first factor by determining how you are using the copyrighted work, and are more likely to find nonprofit educational and/or non-commercial uses as fair use. However, not all nonprofit educational and/or non-commercial uses are fair, and all commercial uses are not fair. Rather, the courts balance the purpose and character of the use against the other factors. Also, “transformative” uses, usage of a copyrighted work that add something new, with a further purpose or different character, and do not substitute for the original sue of the work, are more likely to be considered fair use.
Nature of the copyrighted work
Here, courts will analyze the nature of the copyrighted work as it relates to one of the purposes of copyrights: to encourage creative expression. Thus, a more creative or imaginative work (e.g., fictional novels, movies, songs, etc.) is less likely to support claims of fair use than using a factual work (e.g., news articles). Additionally, using an unpublished work is also less likely to support a claim of fair use than using portions of a published work.
Amount and substantiality of the portion used
Under this factor, courts will analyze the amount and substantiality of the portion used in relation to the copyrighted work as a whole. In particular, courts will analyze both the quantity and quality of the copyrighted material that was used. If the use includes a large portion or percentage of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, courts are more likely to conclude that it was a fair use. It is important to note though that some courts have found use of an entire work to be a fair use under certain circumstances. Likewise, in another context, using just a small fraction of a copyrighted work was determined to not be fair use because the selection was the “heart” of the work.
Effect of the use upon the potential market
Lastly, courts will review how the unlicensed use harms the existing or future market for the copyrighted work. For example, courts will look to see whether the use is hurting the current market for the original work. If the use is displacing sales of the original copyrighted work, courts will not likely not find it to be a fair use. Courts will also analyze whether the unlicensed use could cause substantial harm if it were to become widespread.
If this analysis for determining fair use seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. The amorphous definition of “fair use” exists because judges, and the lawmakers who created the fair use exception, wanted the definition to be expansive and open to interpretation. If you still have questions or concerns about fair use or other copyright questions, give Grell & Watson a call at (919) 825-3309!