Saturday, August 14, 2010

What to Consider When Considering Fair Use

Fair use allows limited copying of in-copyright material without permission for socially productive purposes such as commentary, criticism, news reporting and parody.  However, these uses are not automatically deemed fair uses. Only a court can determine with authority whether a particular use is a fair use. 

The fair use doctrine acknowledges that copyright is essential in theory, but may be pernicious in practice. Using a fairness test, courts balance the rivalrous property interests of copyright owners against the societal interest in permission-free access. 

Fair use is a defense to copyright infringement.  So, think defensively.  As a general rule, transformative uses, or uses that challenge, construe, tease, or poke fun at the original, resulting in new insights and meaning, are favored by courts.  

To determine whether a use is a fair use, courts consider the below four factors.  No one factor is determinative, although factor four, which relates to economic harm to the copyright owner, weighs heavily in any fair use decision. 
  1. The purposes and character of the use, including whether the use is primarily commercial; 
  2. The nature of the work that's been copied;
  3. The amount and importance of what was taken in relation to the original work as a whole;
  4. The effect the copying has on the marketability of the original work and its derivatives
What to Consider When Considering Fair Use

While there are no mechanical rules to define with precision what is a fair use, the following criterion, distilled from leading court decisions, will help you assess if a proposed use is likely to be deemed a fair use.       
  • Fair use favors transformative uses.   Use the work as a springboard for new insights.   Critique the original.  Make a connection between it and other works.  Use it to buttress your own arguments, or the arguments of others.  
  • Since ideas are common property, it's easier to justify use of a factual or informational work than a creative one.  That is because teaching, scholarship, research and news reporting are cumulative in ways not typically associated with art and music. 
  • Poetry, song lyrics, and visual works enjoy a high degree of protection under copyright law, so, fair use tilts against use of these works. 
  • Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, that fact weighs against fair use. 
  • Sometimes even a small (but important) portion borrowed from a larger work may constitute copyright infringement.  Make sure the amount you use is reasonable in light of the purpose of the copying.  
  • Synthesize facts in you own words, keeping in mind that close paraphrasing may constitute copyright infringement if done extensively.
  • Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit, will not, alone, transform an infringing use into a fair use.
  • Parody is a work that that ridicules or mocks another work.  Fair use favors parody.  It does not favor satire.  Make certain the parody is apparent.  A conservative approach is to conjure up just enough of the original to convey your parodic points. 
  • Being a non-profit educational institution won't insulate you against liability if you exceed the bounds of permissible fair use.  
  • The most important consideration concerns economic harm.  Don't compete with the work you are quoting or copying from. If the use displaces or diminishes the market for the original work, including revenue from licensing fees, it is probably not a fair use. However, the more transformative the work, the less likely the displacement of sales will be determinative.
To paraphrase the Chicago Manual of Style, fair use is a use that is fair, so be bold, but also heed the Copyright Office's warning: "[T]he endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules."

Trademark Fair Use

Like copyright law, claims of trademark protection can overreach the bounds of justifiable legal rights. Fortunately, the First Amendment states that there shall be “no law” restricting freedom of the speech or the press. The trademark fair use doctrine allows the use of a trademark when it is used in a way not to deceive the public. For example, it is a fair use to use a trademark  in the title of a literary work if done in good faith to convey a message about what the work is about, provided you don’t suggest that the work is approved or endorsed by the trademark holder. 

Fairness, like beauty, can be debated, but not easily defined.  If you are uncomfortable being unsure, err on the side of caution and seek permission, or consult with a copyright or trademark attorney.    

Section 107 of the U.S. Copyright Act

Additional Resources:
Trademark Registration and the Single Book Title

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances.   It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

LLOYD JASSIN is a New York-based copyright, publishing and entertainment attorney.  He is co-author of the Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.).  Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators and their publisher partners.  A long-time supporter of independent presses, he was First Amendment counsel to the Independent Book Publishers Association  (IBPA) and is a member of the The Beacon Press advisory board. 

He may reached at or at (212) 354-4442.  His offices are located in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036.  Follow the Law Firm and Lloyd on Twitter at

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