Titan Law PLLC

Fair use is a legal doctrine that allows limited use of copyrighted material without permission from the copyright owner under certain conditions. In the United States, it is codified in Section 107 of the Copyright Act of 1976 (17 U.S.C. 107) and is determined by a case-by-case analysis based on four key factors.

The Test

1. The Purpose and Character of the Use

• Transformative Use: If the new work adds something new, such as commentary, criticism, or parody, it is more likely to be considered fair use. For example:
  • A review quoting small portions of a book or movie.
  • A YouTube video critiquing a film with short clips included.
• Commercial vs. Nonprofit Use: Nonprofit, educational, or personal use is more likely to qualify as fair use compared to for-profit uses.

2. The Nature of the Copyrighted Work

• Published vs. Unpublished: Using published material is more likely to be fair use than unpublished works.
• Creative vs. Factual: Factual works, such as news or academic articles, are more likely to fall under fair use than highly creative works like novels, music, or films.

3. The Amount and Substantiality of the Portion Used

• Quantity: Using small excerpts rather than large sections of the work is more likely to be fair use.
• Qualitative Importance: Even a small portion may not be fair use if it constitutes the “heart” of the work (e.g., the most memorable scene of a movie or a critical plot point in a book).

4. The Effect of the Use on the Market for the Original

• If the use negatively impacts the market value or potential market for the original work (e.g., substituting for the original product), it is less likely to be considered fair use.
  • Example: Uploading an entire movie to a free streaming site could harm its market value and likely won’t qualify as fair use.

Common Examples of Fair Use

1. Education and Research: Quoting from a book in a classroom or academic paper.
2. Parody and Satire: A comedy sketch mocking a famous song or character.
3. News Reporting: Including excerpts of copyrighted material to report on events.
4. Criticism and Commentary: Film reviews, art critiques, and scholarly analyses.

Important Considerations

• Not Automatic: Even if a use seems to meet the factors, it must be assessed holistically.
• Fair Use is a Defense: It provides legal justification but must often be proven in court if challenged.

Titan Law PLLC is here to help you if you find yourself in a “fair use” fight, especially for content creators, podcasters, and alternative journalists. Contact jwilson@titanlawny.com if you or a client have questions involving issues related to these topics.

For more useful info, check out the Blog Archive and Fair Use section.

Further Resources:

U.S. Copyright Laws (including 17 U.S.C. 107)

U.S. Copyright Office’s Fair Use Index (searchable)