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  • Writer's picturePeter Lamont, Esq.

Fair Use in Copyright Law

In today's digital landscape, where the click of a button can share content far and wide, understanding the intricacies of copyright law has never been more critical. One area that often leads to confusion and legal quandaries is the doctrine of "Fair Use." This blog post aims to illuminate this complex legal concept, offering an in-depth explanation, citations to pertinent laws, and real-world examples to help you navigate the labyrinth of Fair Use.

NJ Fair Use attorneys

What is Fair Use?


Fair Use is a legal doctrine embedded in U.S. copyright law that permits limited use of copyrighted material without obtaining permission from the rights holders. It serves as a defense against copyright infringement claims. Fair Use is enshrined in Section 107 of the United States Copyright Act of 1976, which provides the framework for determining whether a particular use of copyrighted material can be considered "fair."


The Four Factors of Fair Use


When it comes to Fair Use, the law doesn't offer a straightforward checklist but rather outlines four factors that courts consider when determining whether a specific use of copyrighted material falls under this doctrine.


  1. The Purpose and Character of the Use: The first factor scrutinizes how the copyrighted material is being used. If the use is for educational, non-profit, or transformative purposes, it leans more towards being considered fair. For example, using copyrighted material in a classroom setting for educational purposes often falls under Fair Use.

  2. The Nature of the Copyrighted Work:The second factor considers the type of work being used. Factual or published works are generally more susceptible to Fair Use compared to creative or unpublished works. For instance, quoting a factual news article for a research paper is more likely to be considered fair use than reproducing a piece of abstract art.

  3. The Amount and Substantiality of the Portion Used: The third factor examines the quantity of the copyrighted material used in relation to the work as a whole. Generally, the less you use, the more likely it is to be considered fair. However, even using a small but essential part of a work, like the chorus of a song, can tip the scales against Fair Use.

  4. The Effect of the Use on the Market Value: The fourth and final factor considers the impact of the use on the market value of the original work. If the use has the potential to deprive the copyright owner of income, it is less likely to be considered fair. For example, distributing copies of an entire copyrighted book online for free would likely harm the market for that book and would not be considered Fair Use.

One of the most straightforward examples of Fair Use is in an educational setting. A teacher photocopying a few pages of a copyrighted book to distribute in a classroom for educational purposes is generally considered Fair Use.

Examples of What Constitutes Fair Use and What Does Not


To provide a more comprehensive understanding of Fair Use, it's beneficial to explore a variety of examples that illustrate how this doctrine is applied in different contexts.


Educational Use

One of the most straightforward examples of Fair Use is in an educational setting. A teacher photocopying a few pages of a copyrighted book to distribute in a classroom for educational purposes is generally considered Fair Use. This is because the use is for a non-commercial, educational purpose, and it's unlikely to affect the market value of the book adversely.


News Reporting

Another example that often falls under Fair Use is news reporting. Journalists may use short clips from copyrighted movies or songs in a news story to provide context or analysis. The key here is that the use must be transformative and not merely a way to avoid purchasing the rights to the material.


Parody and Commentary

Creating a parody of a popular song or movie can also be considered Fair Use, especially if the parody is making a critical statement or commentary about the original work. For example, "Weird Al" Yankovic's humorous renditions of popular songs are often protected under Fair Use because they are transformative and intended for commentary.


Reviews and Criticism

Writing a book review that includes brief quotations from the text is generally considered Fair Use. The purpose is to provide critique and analysis, and the quotations are usually a small portion of the entire work.


Research

Using excerpts or quotations from copyrighted works in academic research papers is often considered Fair Use, especially if the use is for a non-commercial purpose and does not replace the need for the original work.


Commercial Use

On the flip side, using copyrighted material for commercial gain is usually not considered Fair Use. For example, using copyrighted music in a commercial advertisement without permission would not be Fair Use. This is because the use is for commercial gain and could potentially harm the market value of the original work.


Unauthorized Distribution

Uploading an entire copyrighted movie or book online for free public access is a clear violation of Fair Use. This kind of use significantly impacts the market value and potential sales of the copyrighted material.


Fan Fiction and Art

The realm of fan fiction and fan art is a gray area in Fair Use. While some creators tolerate or even encourage fan works, these could technically be considered copyright infringement if they use copyrighted characters or settings without permission. However, if the fan work is highly transformative and does not harm the market value of the original, it may be considered Fair Use.


Social Media Sharing

Sharing copyrighted images or videos on social media platforms without permission is generally not considered Fair Use, especially if the sharing is widespread and affects the market value of the work. However, reposting a small excerpt of an article with proper attribution and a link to the original might be considered Fair Use, particularly if it's for commentary or discussion.


By examining these examples, we can see that Fair Use is a nuanced doctrine that requires careful consideration of various factors, including purpose, nature of the work, amount used, and market impact. When in doubt, it's always advisable to consult with a legal professional to assess whether your intended use falls under Fair Use.


Legal Citations and Case Law


The primary law that outlines the doctrine of Fair Use is the United States Copyright Act of 1976, specifically 17 U.S.C. § 107. Additionally, the Supreme Court case Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), serves as a landmark decision that clarified that commercial use does not automatically negate a claim of Fair Use, particularly if the new work is transformative in nature.


Conclusion


Understanding the doctrine of Fair Use is indispensable for anyone who engages with copyrighted material. While Fair Use provides a legal defense against copyright infringement, it is not a carte blanche permission to use copyrighted material freely. Each case is unique and subject to the four factors outlined in Section 107 of the Copyright Act. Therefore, when in doubt, it is always prudent to consult with a legal professional to assess the risks and implications of using copyrighted material.


Do you have questions about the legal issues discussed in this post? If so, contact us today at our Bergen County Office. Call Us at (201) 904-2211 or email Us at info@pjlesq.com

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If you would like more information about this post or if you want to discuss your legal matter with an attorney at the Law Offices of Peter J. Lamont, please contact me at pl@pjlesq.com or at (201) 904-2211. Don't forget to check out and subscribe to our podcast and YouTube channel. We have hundreds of podcasts and videos concerning a variety of business and legal topics. I look forward to answering any questions that you might have.

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As with any legal issue, it is important that you obtain competent legal counsel before making any decisions about how to respond to a subpoena or whether to challenge one - even if you believe that compliance is not required. Because each situation is different, it may be impossible for this article to address all issues raised by every situation encountered in responding to a subpoena. The information below can give you guidance regarding some common issues related to subpoenas, but you should consult with an attorney before taking any actions (or refraining from acts) based on these suggestions. Separately, this post will focus on New Jersey law. If you receive a subpoena in a state other than New Jersey, you should immediately seek the advice of an attorney in your state, as certain rules differ in other states.



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