Understanding Fair Use in Copyright Law

One of the most commonly discussed pieces of copyright law is the doctrine of fair use. It is also one of the most complex pieces. This doctrine acts as a powerful limitation on the rights of copyright holders because it undercuts their monopoly on their works. Ordinarily, only a person who holds a copyright or a license on a work may reproduce it, but fair use creates a limited exception to this rule by allowing anyone to reproduce the work if it falls under the definition of a fair use laid out in 17 U.S.C. §107.

Determining a Fair Use

Determining whether a work qualifies as a fair use is a highly specific, fact-based inquiry based on four factors found in the copyright statute:

• The purpose and character of the work, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• 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 on the potential market for or value of the copyrighted work.

These factors do not act as a series of boxes to check. Instead, they merely guide a judge’s thinking. For instance, the fact that the allegedly infringing work generates profits for the creator does not inherently defeat a fair use defense. The court would examine the other factors, like how much of the copyrighted work is used and whether the new use “transforms” the old work into something new or different, a subset of the purpose and character factor. Ultimately, this makes the fair use inquiry very nebulous and leaves room for quality lawyers to move the needle.

The Purpose of Fair Use

Fair use was initially created by a judge as an exception to copyright law, and after the doctrine developed it was codified as a piece of the copyright statute. Fair use exists to further the public policy goals intended by copyright law. Copyrights are not given out for the author’s benefit or to acknowledge the effort that the author put into their creation. Instead, the system is designed to incentivize the creation of more works of art that the public can benefit from. A system that provided too strong a right to the author of the work would squash any public benefit because the use of the work would be too tightly controlled. Fair use creates a safety valve so that other artists can build on the works of copyright holders, enriching the public domain without unfairly depriving the original artists of the ability to profit from their work. This balance is what makes the fair use inquiry so unique in every case. Judges must respect the rights of original authors, while encouraging future creativity.

Whether you believe someone is infringing one of your rights or you think someone has wrongfully accused you of copyright infringement, it is important to consult with dedicated legal counsel. A West Palm Beach copyright lawyer at Pike & Lustig, LLP can help you better understand your case and all your options.