The Fair Use Doctrine
Fair Use is an important subject that needs serious elaboration. The Fair Use doctrine is one of the most unclear and widely misinterpreted concepts in copyright law to date. It is an exception to the rule that no one can use another author or artist’s work without prior consent from the copyright owner.
Fair Use means that one can actually use copyrighted material, and there must be a reason to do so. To determine whether a certain use qualifies as fair is not an easy task, though.
If one uses copyrighted material for a limited and transformative purpose, then it would be fair use. Limited use is pretty straightforward – the material is being copied for one-time use and cannot be used on an ongoing or continuous basis. The term “transformative” means ambiguous in the context of the Fair Use doctrine. A “limited and transformative purpose” can refer to criticism, comment, news reporting, teaching, scholarship, and research. Therefore, the Fair Use doctrine can be used as a defense if you can prove that your use of copyrighted material was done for both a limited and transformative purpose.
The Fair Use privilege is codified as follows:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
_
17 U.S. Code § 107 – Limitations on exclusive rights: Fair use
If you think the answer to a particular Fair Use question is immediately clear, think again because it probably isn’t. We would strongly recommend you get a formal legal opinion from an attorney whenever you have questions about whether your use of someone else’s work qualifies as fair. Wrongly assuming that the use is fair could be costly if the copyright owner decides to sue for infringement.
Simply copying a small portion of somebody else’s work and acknowledging the source is not necessarily a “fair use.” In other contexts, as a website owner/author, you may want to publish some information written by someone else but cannot obtain permission from the person or company who owns the copyright; if your use qualifies as fair, you can publish it without getting permission.
To invoke the Fair Use defense, you must have an authorized copy of the work. A Fair Use claim may be denied if the original work has been copied but then transformed to no longer resemble the original. In some instances, however, such “intermediate” copying may be allowed to provide access to unprotected ideas and processes.
Finally, let’s say some words about the First Amendment in the context of the Fair Use debate. The First Amendment provides that "Congress shall make no law [...] abridging the freedom of speech, or of the press [...]". It is unclear whether the First Amendment grants an additional privilege to make unauthorized copies of protected works beyond that granted by the Fair Use doctrine. While commentators have argued that a separate defense against an allegation of copyright infringement does exist, courts have not agreed. Instead, courts have stated that the combination of the Fair Use doctrine (described above) and the understanding that copyright does not prevent copying facts and ideas secures society’s interest in free speech.