What Constitutes "Fair Use?"

• When it comes to claiming fair use, it's often helpful to know what is permissible rather than what is expressly forbidden. The U.S. Copyright Office has established examples of what does not constitute copyright infringement. Quoting brief passages of written copyrighted material for purposes of reviewing or critiquing the work is permissible, as is quoting excerpts of the work to illustrate the author's point or to clarify what the author is trying to get across to his audience. Teachers may copy and distribute very limited amounts of material for purposes of instruction, regardless of the format (written work, audio or film). Summarizing copyrighted material is also permitted when writing about the work in a film or music review or news article. Parodying copyrighted material, such as through music and art, is also fair use because parody is considered a social commentary.
  
  

Fair Use and Copyright Law

• How can someone make sure that they won't be charged with infringement if he claims a fair use exemption when using copyrighted works? One sure method is to look at it from the court's point of view. The U.S. Copyright Law (Title 17, Section 107) establishes four factors that federal courts are required to consider when determining fair use. These include the nature of the copyrighted work, the amount of copyrighted material used compared to the work as a whole, the effect of use on the potential market for or value of the work, and the purpose and character of the use, including if use is of a commercial nature or for nonprofit educational purposes.
  
  

Nature of Work

• When it comes to fair use, the degree of creativity of the copyrighted work is taken under consideration. If the work is more factual or instructional in nature, courts may be inclined to give more latitude. But works that are highly unique may be afforded additional protection. Also relevant is if the work is published. Because unauthorized use of unpublished material can severely undermine an author's ability to get it into the public market, unpublished material is afforded more protection when it comes to fair use.
  
  

Amount or Portion of Work Used

• Fair use does not apply when a work is used to the extent use embodies the sum total of the work. In determining fair use, courts consider if the amount or portion of the copyrighted material goes to the heart of the work--sometimes even a very small amount of the work might not be permitted if it is central to the idea of the work or captures the essence of the work in its entirety. Defendants have lost many a court case when claiming fair use that relies on this particular factor. In 1991, Kinko's copy shop was sued by textbook publishers because it copied "packets" for students that constituted a substantial amount of the textbooks. As a result, students didn't need to buy expensive textbooks--and this in turn resulted in a financial loss to the publishing house.
  
  

Fair Use & Market Value

• One of the most important factors in determining fair use is if the use affects the market value of a copyrighted work. Quite simply, if someone uses copyrighted material and claims fair use, will this directly cause a creator to lose revenue? This factor is best exemplified by the famous 1984 "Betamax" case. Universal City Studios sued Sony Corporation, which manufactured VCR machines. Universal claimed that Sony contributed to infringement because its VCRs permitted individual users to tape their favorite t.v. shows while they were away from home. The court decided that recording a show so that it could be viewed later (in private) was considered fair use because it did not result in lost revenue to a copyright holder. However, in the Kinko's case, the court determined that textbook publishers took a financial hit while Kinko's generated revenue as a result of its infringement.
  
  

Purpose & Character of Use

• Courts will consider why someone is using copyrighted material--what do they get out of the use? Is use for comment or criticism? Does it benefit the public? Or does the use of the copyrighted material generate revenue for someone other than the copyright holder? If someone uses part of copyrighted work for commercial purposes, this will not weigh in his favor should a claim of infringement arise. In the However, if use of the copyrighted material is merely incidental, fair use generally applies. A typical example might be of a television news reporter who is covering the many events at a local live music festival. A band's original music might be playing in the background as the reporter's story is aired. However, the specific song or music is not central to the story. Therefore, fair use applies.