3.7 The Fair Use Defense
2 min read•june 25, 2024
is a crucial concept in copyright law, allowing limited use of copyrighted material without permission. It balances the rights of creators with the public interest in accessing and building upon existing works.
Four key factors determine fair use: purpose, nature of the work, amount used, and . Understanding these factors helps navigate the complexities of using copyrighted material legally and ethically.
Key Factors and Considerations in Fair Use Defense
Factors of fair use determination
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- Purpose and character of the use considers whether the use is commercial or non-profit educational and if it is transformative by adding new expression, meaning, or insight
- Nature of the copyrighted work evaluates if the work is factual or highly creative and if it is published or unpublished
- Amount and substantiality of the portion used assesses the quantity of the original work used and the quality and importance of the portion used
- Effect of the use upon the potential market or value of the copyrighted work examines the impact on the original work's market and potential loss of revenue for the copyright owner ( fees)
Parody and transformative works protection
- mimics the original work for comedic or critical purposes but must be transformative and not serve as a market substitute ("Weird Al" Yankovic songs)
- Transformative works alter the original work with new expression, meaning, or message such as , , and ('s )
- The more transformative the use, the more likely it is to be considered fair use
- Creating that significantly transform the original may be protected under fair use
Fair Use Guidelines for Academic Institutions and Libraries
Fair use guidelines for academia
- Classroom use allows educators to display or perform copyrighted works in the classroom and use limited portions for teaching, scholarship, or research
- Library reproduction permits libraries to make copies for preservation, security, or deposit in another library and for patrons' private study, scholarship, or research
- Digital copies and distance education enable reasonable and limited portions of works to be used in digital formats with technological protection measures to prevent unauthorized access (password-protected course websites)
- Fair use best practices include developing institutional policies and guidelines, educating faculty, staff, and students about fair use, and considering obtaining permissions for extensive or repeated use of copyrighted materials
Copyright Infringement and Intellectual Property Law
Understanding copyright protection
- occurs when someone uses copyrighted material without permission or outside the scope of fair use
- governs the protection of creative works and inventions
- works are not protected by copyright and can be freely used without permission
Key Terms to Review (21)
'Weird Al' Yankovic: 'Weird Al' Yankovic is an American singer, songwriter, record producer, and parodist who has made a career out of creating humorous parody songs that satirize popular music. He is known for his ability to take well-known songs and transform them into comical versions that often comment on contemporary culture and society.
Andy Warhol: Andy Warhol was an American artist who was a leading figure in the visual art movement known as pop art. He is renowned for his innovative use of everyday consumer goods and celebrity culture as the subject matter for his artwork, which challenged traditional notions of art and challenged the concept of originality.
Appropriation Art: Appropriation art is a form of artistic practice where artists intentionally borrow, copy, or repurpose existing images, objects, or concepts and incorporate them into their own work. This technique challenges traditional notions of originality and challenges the concept of intellectual property rights.
Campbell v. Acuff-Rose Music, Inc.: Campbell v. Acuff-Rose Music, Inc. is a landmark Supreme Court case that addressed the fair use defense in the context of copyright infringement. The case established important guidelines for determining whether a use of a copyrighted work qualifies as a fair use, which is an exception to copyright infringement.
Campbell's Soup Cans: Campbell's Soup Cans is a series of paintings created by the renowned American artist Andy Warhol in the 1960s. The paintings depict multiple cans of Campbell's soup, one of the most iconic consumer products of the time, and are considered a landmark work of the Pop Art movement.
Copyright Infringement: Copyright infringement is the unauthorized use or reproduction of copyrighted material, which violates the exclusive rights of the copyright holder. It is a key concept in understanding the scope and limitations of copyright law.
De minimis analysis: De minimis analysis refers to the legal principle that considers an infringement or use of copyrighted material to be so small or trivial that it does not rise to the level of a substantial violation, and therefore does not constitute copyright infringement. This analysis is particularly relevant in the context of the fair use defense.
Derivative Works: A derivative work is a new work that is based on or derived from one or more pre-existing works. It involves transforming, adapting, or modifying the original work to create something new, while maintaining a connection to the original source material.
Digital Millennium Copyright Act (DMCA) Era: The Digital Millennium Copyright Act (DMCA) era refers to the period following the enactment of the DMCA in 1998, which significantly impacted copyright law in the digital age. This landmark legislation aimed to address the challenges posed by emerging technologies and the rapid growth of the internet, providing a framework for balancing the rights of copyright holders with the needs of users and service providers.
Fair Use: Fair use is a legal doctrine that allows the limited use of copyrighted material without requiring permission from the copyright holder. It is an exception to the exclusive rights granted to the owner of a copyright, providing a framework for determining when a use of copyrighted material is acceptable.
Four-Factor Analysis: The four-factor analysis is a framework used to evaluate whether the use of a copyrighted work falls under the fair use defense in copyright law. It considers four key factors to determine if the use of a work is considered fair use or an infringement of the copyright holder's exclusive rights.
Intellectual Property Law: Intellectual property law refers to the set of laws and regulations that protect the rights of individuals and organizations over their creative works and innovations. This area of law encompasses various forms of intellectual property, including patents, copyrights, trademarks, and trade secrets, and ensures that creators and innovators are able to benefit from their efforts.
Judge Pierre Leval: Judge Pierre Leval is a prominent U.S. federal judge who has made significant contributions to the interpretation and application of the fair use doctrine in copyright law. His rulings and scholarly writings have greatly influenced the understanding and development of this important legal concept.
Licensing: Licensing is the process of granting permission to use intellectual property, such as patents, copyrights, or trademarks, to another party in exchange for compensation. It allows the owner of the intellectual property to maintain control over its use while generating revenue from its exploitation by others.
Market Impact: Market impact refers to the effect that a transaction or event has on the price of a financial instrument or asset. It measures the degree to which the purchase or sale of an asset influences its market price, reflecting the ability of an investor or trader to execute a transaction without significantly moving the market.
Mashups: Mashups are a form of digital content creation where existing media elements, such as audio, video, or images, are combined and remixed to produce a new, transformative work. Mashups often involve blending multiple sources in creative and unexpected ways, challenging traditional notions of intellectual property and the boundaries of fair use.
Parody: Parody is a form of creative expression that imitates or mimics the style, content, or form of an original work, often for the purpose of humor, commentary, or criticism. It involves the use of recognizable elements from the original work in a new context or with a different purpose.
Public Domain: The public domain refers to creative works or inventions that are not protected by intellectual property rights, such as copyright, trademark, or patent, and are available for public use without restriction. Works in the public domain can be freely used, modified, and distributed by anyone without the need to obtain permission or pay royalties.
Remixes: Remixes are creative adaptations of original works, typically involving the alteration or enhancement of music tracks or audiovisual content. They often take existing elements and recontextualize them to create something new, which raises questions about originality and copyright. The transformation involved in remixes can invoke the Fair Use defense, as they may be seen as commentary, criticism, or artistic expression rather than direct reproduction.
Supreme Court: The Supreme Court is the highest court in the United States judicial system, serving as the final arbiter of the Constitution and federal law. It has ultimate jurisdiction over all other courts and plays a crucial role in interpreting the law and safeguarding the rights and liberties of citizens.
Transformative Use: Transformative use refers to the practice of using an existing copyrighted work in a new and different way, with the purpose of creating something that is transformative in nature. This concept is central to the fair use defense in copyright law, as it helps determine whether a use of a copyrighted work is considered a fair use or an infringement.