Source Usage: What is FAIR USE? How does it work UNDER COPYRIGHT LAW?

June 2, 2017

by Mallory Donick

URL: https://www.traverselegal.com/blog/fair-use-under-copyright-law/

FAIR USE

UNDER COPYRIGHT LAW

Not every use of a copyrighted work is considered infringement.

Fair Use is an exception that permits limited use of copyrighted material without acquiring permission from the rights holder.

Typically, fair use includes categories such as criticism/parody, comment, news reporting, teaching, scholarship, and research.

When determining whether fair use exists, courts look to whether the use is transformative by examining four factors:

The purpose and character of the use, 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 upon the potential market for or value of the copyrighted work.

Regarding the first factor, a major consideration is whether the use is non-commercial.

Under the second factor, if a work is previously copyrighted, the original owner’s rights to control derivative works comes into play.

The third factor favors fair use in the event a smaller portion of the copyrighted work is utilized.

Lastly, the fourth factor considers whether the use in question acts as a direct market substitute for the original and whether potential market harm exists beyond that of a direct substitution.

Overall, fair use is heavily fact-intensive and court analyses have rendered various results throughout the years.

Fair use has been a particularly hot topic in the music industry, with recent copyright infringement lawsuits aimed at hit singles such as Robin Thicke’s “Blurred Lines”, Bruno Mars’ “Uptown Funk,” and Lil Jon’s “Turn Down For What.” The lawsuits accuse these artists of violating copyrights to older songs, but the artists maintain that any such use is purely inspirational, and thus fair. Older music copyright cases, such as Campbell v. Acuff-Rose Music, Inc. have found that 2 Live Crew’s “Pretty Woman” was a parody of Roy Orbison’s “Oh, Pretty Woman”, and therefore fair use.