FAIR USE AND DETERMINING WHAT’S “FAIR”

Ah, yes, fair use. I hear people use that phrase all the time based on their opinion of what they think is “fair” under the circumstances.

Unfortunately, it’s way more complicated than that. Indeed, the United States Supreme Court has gone on record as saying that the Fair Use Doctrine is “the most troublesome in the whole law of copyright.”

Determining what constitutes “fair” use has been a major conundrum in courts of law. That’s because the doctrine seeks to balance several rights: the rights of the copyright holder, the rights of society as a whole, and the right of individuals to obtain information.

The United States Supreme Court has gone on record as saying that the Fair Use Doctrine is “the most troublesome in the whole law of copyright.”

Let’s back up for a moment…

Fair Use is not a right but rather an “affirmative defense” against a copyright infringement claim.

An affirmative defense is a set of facts that operate to defeat an infringement claim, even though the facts that support the claim are true. For example, let’s say you’re accused of using copyrighted material on your website. You don’t deny that you used the material, but you claim to have a “legal excuse” (fair use) that mitigates the infringement. In other words, the doctrine allows for the use of copyrighted material, without permission, under certain circumstances, the operative word being “certain” as opposed to, “whenever I think it’s fair.”

Fair use, as difficult as it may be to determine, can be put through a test, although hardly a straightforward one.

No Bright Line Test For Fair Use

Generally speaking, a court will consider 4 factors, or guidelines, in its determination ofcopyright and fair use whether a fair use defense applies to the matter before it:

  1. The purpose and character of the use (example, for editorial or commercial purpose);
  2. The nature of the copyrighted work  (example, is the work factual or fictitious);
  3. The amount and substantiality of the portion taken (don’t ever make assumptions here);
  4. The effect of the use upon the potential market (does the use affect the value of the copyrighted work?)

As you might imagine, these factors give the court a lot of discretion in making its determination because there is no “bright line test” that minimizes interpretation.

And that’s why fair use is so confounding. And often a roll of the dice as a defense.

Which means… 

Don’t rely on your opinion of “fair.”

Don’t assume you can take images off the Internet and use them on your website without permission and call it fair use.

Don’t assume that it’s fair use to use “just a few seconds” of a song on your podcast, without permission.

And, here’s a big one: Giving attribution doesn’t count. You need actual permission.

BOTTOM LINE

Play it safe: do not use copyrighted material without the express permission of the copyright holder. And just because you don’t see a copyright symbol or notice does not mean it’s not copyrighted material. A copyright notice is not required to establish legal ownership of the material in question. 

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