The only element of copyright law that the average person is likely to know is “fair use.” Fair Use is an element in copyright and trademark law that allows the use of protected Intellectual Property without prior consent from the property’s owner. Fair Use can get bandied about like a mythical catch-all defense to allow the use of copyrighted material, but the truth is not so broad.
There are a few examples of Fair Use cases that are generally acceptable, including for commentary, search engines, criticism, parody, news reporting, research, and scholarship. The most common of these uses is for criticism and commentary, such as quoting directly from copyrighted material you are referencing in a review, and parody, such as a “Weird Al” Yankovich song using the melody of the song it is based on.
When Fair Use is called into question, there are four factors which the United States Copyright Office looks at to determine whether the case was covered or not:
- Purpose and Character of the Use. This factor looks primarily at whether the use was for commercial or non-profit educational purposes. This is why it is more likely that a teacher could show their class a movie under Fair Use than a fan could hold a screening of the movie and charge admission to see it.
- Nature of the Copyrighted Work. This factor analyzes how close the use relates to the intended purpose of the material. This is why an educational or non-fiction book is more likely to have reprinted material covered under Fair Use than a fiction book for pure entertainment.
- Amount and Substantiality of the Portion Used. This factor looks at how much of the copyrighted material was used in relation to the whole material available. It also examines the quality or importance of the portion of the material used. This is why a small clip of a song on the radio may be more likely to be covered by Fair Use than playing the entire song without permission.
- Effect of the Use on the Market or Value of the Work. This factor examines the larger market impact of the use and its effect on the commercial value of the work. This is why releasing a clip of a pivotal moment in a film’s climax may be less likely to be covered under Fair Use than from another section of the material, since viewers are paying to see that moment specifically.
Fair Use can be beneficial to the greater community and the copyrighted material itself just as easily as it can be damaging to it. If you have any questions about Fair Use, contact McDermott IP Law today! We believe in protecting client innovation.
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