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Fair use is an affirmative defense that can be raised in response to claims by a copyright owner that a person is infringing a copyright. Fair use permits a party to use a copyrighted work without the copyright owner’s permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. These purposes only illustrate what might be considered as fair use and are not examples of what will always be considered as fair use. In fact, there are no bright-line rules in determining fair use, since it is determined on a case-by-case basis. But copyright law does establish four factors that must be considered in deciding whether a use constitutes a fair use. These factors are:
Although one factor or another may weigh more heavily in a fair use determination, each of the factors must be considered and no one factor alone can determine whether the use falls within the fair use exception. However, the factors that are usually the most influential are the first and fourth factors. Factor 1: The Purpose and Character of the UseThe first factor mostly focuses on whether the use is commercial or non-commercial and whether the use is transformative. If a use is commercial it is less likely to be fair use and if it is non-commercial it is more likely to be fair use. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work. If the use is transformative it is more likely to be fair use and if it is not transformative it is less likely to be fair use. Factor 2: The Nature of the Copyrighted WorkThe second factor considers the nature of the underlying work, specifically whether it is more creative or more factual. Use of a more creative or imaginative underlying work is less likely to support a claim of fair use, while use of a factual work would be more likely to support a fair use claim. This factor also looks at the publication status of the copyrighted work. When the copyrighted work is unpublished the use is less likely to be a fair use. Factor 3: The Amount UsedThe third factor considers the amount of the copyrighted work that was used compared to the copyrighted work as a whole. Where the amount used is very small in relation to the copyrighted work, this factor will favor a finding of fair use, but where the amount used is not insignificant, this factor will favor the copyright owner. This factor also considers the qualitative amount of the copyrighted work used. If the portion used was the “heart” of the work, this factor will likely weigh against a finding of fair use even if that portion was otherwise a very small amount. Factor 4: The Effect of the Use on the MarketThe fourth factor not only considers whether the defendant’s activities may harm the current market, but also considers whether the use may cause any harm to potential markets that could be exploited by the copyright owner if the use were to become widespread. If the use harms the copyright owner’s current or potential market then it will weigh against fair use. Along with the first factor, this factor is one of the most important in the fair use analysis. For more information, see the fair use in the Copyright Law Explained section of the site. In some situations, you may use another person or entity's copyrighted work without asking permission.Copyright law bestows certain exclusive rights on creators. For example, under 17 U.S. Code § 106, copyright holders have the exclusive right to reproduce their work, create derivative works, and perform the work publicly. But these exclusive rights are not absolute. The doctrine of fair use creates important exceptions. Understanding Fair UseWriters, academics, and journalists frequently need to borrow the words of others. Sooner or later, almost all writers quote or closely paraphrase material that someone else has written. For example:
Assuming the material quoted in these examples is protected by copyright, do Andy, Phil, Regina, Sylvia, or Donnie need permission from the author or other copyright owner to use it? It may surprise you to learn that the answer is "not necessarily." Under the "fair use" defense, another author may make limited use of the original author's work without asking permission. Pursuant to 17 U.S. Code § 107, certain uses of copyrighted material "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." As a matter of policy, fair use is based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. The fair use privilege is perhaps the most significant limitation on a copyright owner's exclusive rights. If you write or publish, you need a basic understanding of what does and does not constitute fair use. Uses That Are Normally Considered Legally "Fair"Subject to some general limitations discussed later in this article, the following types of uses are usually deemed fair uses:
There are several factors that a court will consider when determining whether an instance of infringement qualifies as fair use. Non-commercial use weighs heavily in favor of finding that the infringement is fair use. Violations often occur when the use is motivated primarily by a desire for commercial gain. The fact that a work is published primarily for private commercial gain weighs against a finding of fair use. For example, using the Bob Dylan line "You don't need a weatherman to know which way the wind blows" in a poem published in a small literary journal would probably be a fair use; using the same line in an advertisement for raincoats probably would not be. Similarly, a use that benefits the public or that lends to education also weighs heavily in favor of a finding of fair use. For example, in its advertising a vacuum cleaner manufacturer was permitted to quote from a Consumer Reports article comparing vacuum cleaners. Why? The ad significantly increased the number of people exposed to the Consumers Reports' evaluations and thereby disseminated helpful consumer information. The same rationale probably applies to the widespread practice of quoting from favorable reviews in advertisements for books, films, and plays. Copying From Unpublished MaterialsWhen it comes to fair use, unpublished works are inherently different from published works. Publishing an author's unpublished work before he or she has authorized it infringes upon the author's right to decide when and whether the work will be made public. Some courts in the past held that fair use never applies to unpublished material. However, in 1991 Congress amended the fair use provision of the U.S. Copyright Act to make clear that the fact that a work is unpublished weighs against fair use, but is not determinative in and of itself. For more detailed information on fair use and copyrighted material, see Getting Permission: How to License & Clear Copyrighted Materials Online & Off. Which of the following allows portions of copyrighted materials to be used without permission?Under the doctrine of "fair use," the law allows the use of portions of copyrighted work without permission from the owner.
In what year was the Digital Millennium Copyright Act DMCA signed into law quizlet?The Digital Millennium Copyright Act (DMCA) was signed into law in 1998 and implements two 1996 WIPO treaties.
Which of the following terms is defined as the existing body of knowledge available to a person of ordinary skill in the art?This body of existing knowledge is called “prior art”. The invention must involve an “inventive step” or “non-obvious”, which means that it could not be obviously deduced by a person having ordinary skill in the relevant technical field.
Which term is used to describe the act of stealing someone's ideas or words and passing them off as ones own?Plagiarism is presenting someone else's work or ideas as your own, with or without their consent, by incorporating it into your work without full acknowledgement.
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Allows portions of copyrighted materials to be used without permission under certain circumstances
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