The rights to intellectual property belong to the copyright owner, and use of copyrighted works may require the copyright owner’s permission. However, fair use permits unlicensed use of copyrighted material under certain circumstances to promote freedom of expression. The limits of that use are often called into question in the litigation of copyright infringement cases. If you have questions about fair use and intellectual property, consider contacting an experienced Chicago-based IP attorney from Sullivan & Carter, LLP, by calling (929) 724-7529 to schedule a consultation.
Copyright law, as defined by the United States Copyright Office, protects the rights of copyright owners to reproduce their works, create derivative works based on their original works, distribute reproductions of their works to the public, and perform or display their works as appropriate. According to the Office of the General Counsel at Harvard University, fair use serves to reconcile copyright law with the First Amendment. Because of fair use, others have the right to use small portions of copyrighted works without first getting permission from the copyright owners. Fair use further fosters creativity, allowing creators to build upon previous works without depriving the copyright owners of their rights to control and benefit from their original works.
Title 17 of the United States Code contains the Copyright Act of 1976 and its amendments. According to Chapter 1 of the Copyright Law of the United States, copyright owners have exclusive rights to their works with certain exceptions, and one of those exceptions is fair use. Fair use allows people to reproduce copyrighted works for the purposes of comment, criticism, research, news reporting, teaching, or scholarship. In a copyright infringement case, the court will determine whether the use of a particular work qualifies as fair use using four factors. An intellectual property lawyer from Sullivan & Carter, LLP, may be able to help determine how each factor applies in your case.
When considering the purpose of the use, the judge will look at whether the use was for commercial or nonprofit educational purposes. How is the party that is claiming fair use using the copyrighted work? The court will be more likely to find that noncommercial or nonprofit uses are fair. A “transformative” use may also be considered fair. Transformative use transforms the original work by adding something new with a new purpose or a different character. However, not all of these types of uses will be considered fair. This one factor must be weighed with the other three factors to make a final determination of fair use.
This second fair use factor addresses to what degree the copyrighted work relates to the main purpose of copyrights, which is to encourage creative expression. Using a creative or imaginative work (e.g., a novel, song, or movie) is less likely to be considered fair use than using a factual work (e.g., a news or technical article). Use of an unpublished work is also not likely to support a fair use defense.
This factor considers the size of the portion used compared to the whole copyrighted work. The court will review the quality and quantity of the material that was used. A ruling for fair use is less likely if a large amount of the copyrighted work was used. A fair use ruling may be more likely if only a small amount of the copyrighted material was used. Note that, under certain circumstances, the use of a copyright owner’s entire work has been ruled fair. In other cases, the use of even a small portion of a person’s copyrighted work cannot be considered fair use because of the importance of the selection in relation to the balance of the work.
The fourth factor measures the effects of the use on the potential market for the copyrighted work or its value. Does the unlicensed use negatively impact the current or future market for the original work? In analyzing this factor for a copyright infringement claim, the court will evaluate whether the use may have a negative impact on the market for the original work, such as by diverting sales, or whether the use may cause significant harm over time.
To avoid being the subject of a copyright infringement claim, consider how the four factors will apply to your intended use of copyrighted material. The following questions can help guide this self-evaluation:
The United States Copyright Office designed a user-friendly Fair Use Index for lawyers and nonlawyers alike to review judicial decisions related to fair use and intellectual property. When the use of a copyrighted work is considered fair in a defense against copyright infringement claims, the court will rule against the claim of infringement. The Index provides information about a variety of cases arranged by category and type of use. This information can help to paint a clearer picture of the current boundaries of fair use in copyright law.
The boundaries of fair use in copyright law are not clearly defined. The weights of the four factors of fair use vary on a case-by-case basis. However, rulings for similar copyrighted materials with similar usages, which can be found in the Fair Use Index, may provide valuable insight when preparing to litigate a new copyright infringement case. If someone has used your copyrighted material without your permission, consider contacting an experienced Illinois IP attorney from Sullivan & Carter, LLP, by calling (929) 724-7529 to learn more about fair use and intellectual property.
Add your email below to receive the latest news, tips, and information from Sullivan & Carter, LLP.
Add your email below to receive the latest news, tips, and information from Sullivan & Carter, LLP.
