• Fair Use of Copyrights

    Fair use is a defense against using a protected work without permission. To establish the defense of fair use requires that upon the balance of four factors, the public interest weighs in favor of allowing the infringing use.

    The four factors are:

    1) the character and purpose of the use;
    2) the nature of the copyrighted work;
    3) the amount and substantiality of use;
    4) the effect on the market.

    No single factor is dispositive, but the character and purpose of the use and the effect on the market are considered to be the two most important factors in the analysis.

    Fair use requires that the character and purpose of the use be transformative in nature. Transformative uses add something new with a further purpose than intended by the original author. Some examples include use for educational purposes, uses in critical commentary, and uses in news reporting. Use of a work in commentary does not have to be a direct commentary on the protected work, but rather commentary on ideas invoked by the work. Parody is also a transformative use, but the parody must be critical of the copyrighted work, and there must be a reasonable perception of a parodic character to pass muster.

    The nature of the copyrighted work is also important. There is a greater need to disseminate facts than fiction, so the law recognizes greater protection of fictional works than factual works. Whether the work is published is weighed heavily in this analysis; the right of first publishing belongs primarily with the original author. An unpublished work is less likely to be protected by fair use.

    The amount and substantiality of the use of the copyrighted work requires both a qualitative and quantitative analysis. Quantitatively, if an infringing work takes a large portion of the protected work, it is less likely to be a fair use, but the appropriate analysis is whether more was taken than necessary to fulfill the character and purpose of the use. A whole work can be copied and still be considered fair use. Qualitatively, if a use takes the substantive center or critical portion of the protected work and makes it the substantive center of the new work, it is less likely to be a fair use. Again, it is important to determine if the portion taken was necessary to fulfill the character and purpose. For instance, a parody takes a swipe at the substantive center of a protected work, and therefore it is more necessary to use the substantive center to fulfill the character and purpose of a parody.

    The effect on the market is critical in determining fair use. A use that causes financial harm to the original author is very unlikely to be a fair use. This harm must arise from an actual or direct loss of income, or harm to the original or derivative markets for the work. The appropriate derivative markets to consider are those likely to be developed by the original author, and whether the new work usurps or substitutes itself in such a market. In the case of a parody, the appropriate market to consider is the market for the parody. Finally, criticism of a work that causes market harm does not work against fair use.
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