A San Diego copyright attorney at Gehres Law Library can advise you on your rights as a copyright holder. We can also advise you on limitations of copyright protections, including fair use. If you have been accused of copyright violations, our legal team will also defend you if you fall within a fair use exception.
What is Fair Use?
Copyrights protect creative works, such as books and artwork. When a creator copyrights material, the creator or those he assigns has exclusive rights to publish, perform, print, or record the creative material. This could include songs, plays, books, photographs, or any other type of original creative work.
While copyright protections are important to keep intellectual property secure, it is also necessary to ensure that constitutionally protected rights of free expression are not stifled by copyrights. The Fair Use doctrine attempts to balance the interests of copyright holders against those who wish to criticize the work or who otherwise wish to comment or build on previously copyrighted material.
Under the fair use doctrine, it is generally permitted to use certain copyrighted works without license from the copyright owner for specific purposes. For example, copyrighted works can be used without license to criticize those works, to create parodies, to make relevant news reports, and for permissible teaching, research and scholarship.
The fair use doctrine does not excuse all unlicensed use of copyrighted materials. For example, while there are fair use exceptions that allow copyrighted works to be used for teaching and scholarship, it likely would not be fair use for a teacher to make 20 photocopies of a full copyrighted textbook and hand the copyrighted pages out to students so they don’t have to purchase the book.
There are four key factors that are outlined in Section 107 of the Copyright Act which are used to determine if the use of copyrighted material falls within fair use exceptions. The factors that determine if the use of the material is permissible or a violation of intellectual property laws include:
- The purpose and character of the use: This factor relates to how the copyrighted material is used and what it is used for. Courts tend to provide more leeway when the use of the copyrighted material is of a non-commercial nature, rather than a commercial nature. Courts also consider whether the work was transformed, which would mean that the user of the copyrighted material added something new or changed the character of the work. The more transformative the work is, and the less likely it is that the new work will serve as a substitute for the original use of the work, the more likely it is the court will find fair use.
- The nature of the copyrighted work: The court considers the degree to which the copyrighted work is considered creative expression. This means, for example, that the court is less likely to find that the use of a novel or song is fair use compared with a technical or news article.
- The amount of the copyrighted work used in relation to the portion of the whole: Copyrights will look at how long the copyrighted material is and how much of it was used. For example, while it might be permissible fair use to include 10 lines of a 100 page book in a blog post reviewing the book, it might be less permissible to include all 10 lines of a 10 line poem. The court may also find copyright laws were violated even if only a small section of the work is used if the court finds that the section which was used is considered to be the heart of the work.
- The effect of the use on the market for the original: Courts will consider whether, and to what extent, people might be discouraged from purchasing the original copyrighted work as a result of the unlicensed work. If the unlicensed work harms the market for the original, it is less likely to be considered fair use.
Getting Help from A San Diego Copyright Attorney
Gehres Law Library represents copyright holders, those who have used copyrighted works without a license, as well as those who wish to claim their actions were justified under fair use. Give us a call at 858-964-2314 or contact us online today to find out more about how one of our San Diego copyright attorneys can assist you when legal issues arise involving copyrighted works. We offer a complimentary consultation for new clients.