Thursday, January 9, 2020

"Fair Use": Four Factors You Need to Understand

"Fair Use" is one of the least understood, most litigated aspects of United States copyright law. In essence, it controls the use of other copyrighted works in your own art, writing, reviews or news reporting. The concept of Fair Use is judge-created and first surfaced in the 19th century. It was not until 1976 that Fair Use was codified by the U.S. Copyright Office.


To help both lawyers and the general public understand how previous cases were adjudicated, the Copyright Office offers a publicly accessible Fair Use Index. While it is in no way intended to replace qualified legal advice, the case summaries included in the index help researchers understand how and when judges have applied the "four-step analysis" to reach their decisions. These four deciding factors are:


  1. The purpose and character of the use of copyrighted work. The main question at issue here: does the new work change the function and meaning of the original by connoting a message that was previously non-existent? If so, it may well be Fair Use.
  2. The nature of the copyrighted work. Is the work you're borrowing from highly creative? Does it incorporate unique creative choices? If so, based on a review of decisions in the index, it appears more likely that Fair Use does not apply and that defendants will face a verdict of copyright infringement.
  3. Amount and substantiality of the portion used. This one is self-explanatory. The more of the creator's original work you use, the harder it may be to win a Fair Use argument.
  4. Future market harm. Does use of the original creation negatively impact its potential future sales and marketability? If so, it seems likely that the defendant's use will be deemed improper and damaging.


The succinct synopses of decided cases in the Fair Use Index typically run one page in length and can be downloaded as PDFs. They are not only interesting reading (plaintiffs include Dr. Seuss Enterprises and Fox News Network), these summaries also provide keen insight into the many ways defendants have run afoul of U.S. copyright laws.

2 comments:

  1. Ok... so. My podcast talks about movies. I was using about 20 seconds of the score or a song from the movie as a transistion and then crediting it via "music in this episode was XX by XX and can be purchased XX" i.e. linking to the soundtrack and artist in my show notes. The podcast is commentary and critisism of the movie (and the book it is based on). I *think* this counts as being okay under fair use but could use some feedback. IF this isn't ok... is there a way to fix it in (remove or replace that bit) in episodes that have been out there in the world for years? Thank you in advance....

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  2. I'm not a lawyer so I can't offer legal advice, Kaylia. I can say that, in the eyes of most creators, giving credit is not a remedy for using their work without permission and or payment. As someone once explained to me, if I rob the Smith house and then tell folks I'm wearing Jane Smith's jewelry, it's still stolen jewelry. On the other hand, your example may well BE fair use. The real problem with interpreting this complicated law is that you never know until you run afoul of it. My view is, when in doubt, it's far cheaper to pay an attorney to advise you than defend you.

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