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The Four Factors Used by Judges in Copyright “Fair Use” Lawsuits

Posted on in Intellectual Property

Florida fair use attorneyIf you are planning to use someone else’s copyrighted photographs, music, or other creative works in your business enterprise, you need to be very careful that you do not commit illegal copyright infringement. If you reproduce another person’s copyrighted work without permission and due compensation, you could be sued for damages.

However, not every unlicensed use of a copyrighted work is unlawful. One of the most important issues in copyright law is the concept of “fair use.” The legal doctrine of fair use permits the use of copyrighted music, images, and other creative works in limited circumstances that are considered crucial to protecting the freedom of expression. Examples of fair uses include news reporting, nonprofit educational activities, and critique or commentary.

A user of copyrighted material and the copyright holder often disagree over the differences between fair use and unlawful use. This may result in a lawsuit in which the copyright holder seeks damages from a user of copyrighted material for what they clearly see as copyright infringement, while the user argues that they are protected by the fair use doctrine. Ultimately, the court sides with the law, which applies four specific criteria.

Four Factors of Copyright Fair Use

The federal Copyright Act, Section 107, spells out four factors that distinguish fair use from unlawful use or copyright infringement. The courts evaluate these four factors when deciding who wins a lawsuit alleging copyright infringement.

1. Purpose and character of the new use. Use of a copyrighted work for a nonprofit educational purpose is more likely to be considered fair use. Unlicensed use of a copyrighted work for financial gain is less likely to be considered fair use. However, the profit factor must be considered in combination with other factors.

If the new work is intended to have the same purpose and character as the original, it would not be considered fair use under the law. An example would be using the entirety of a copyrighted song in a video; this would not be fair use, as the song retains its original character.

However, if the new use transforms the original in some way--e.g., by adding new information, aesthetics, meanings, insights, or messages--that would more likely qualify as fair use. According to the US Copyright Office, “Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.” One example is a parody of a popular song, which uses the same melody and many of the same words, but alters enough of the words to change the whole meaning or message of the song. Another example is the inclusion of copyrighted concert posters in a book, but in thumbnail size as part of a historical timeline that imparts an educational insight.

2. Nature of the copyrighted work. The more creative and innovative the copyrighted work is, the more likely that its unlicensed use will be protected. On the other hand, reproduction of a purely factual work is more likely to be ruled fair use. For example, copying and distributing a page from a news magazine or a plain photograph of a widely-available consumer product is more likely to be a considered fair use.

3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole. Typically, short quotes from a long article or book are considered fair use, as are short clips from a song or movie, particularly when used as part of a critique of the work or for educational purposes. However, copying a substantial portion or “the heart” of a copyrighted work (such as the best-known line or two from a hit song) would generally be considered a copyright infringement, particularly if used for commercial purposes.

4. Effect of the unlicensed use upon the existing or future market for copyrighted work. The question here is whether the new use will hurt the present or future sales of the original work or the copyright holder’s ability to make money off their original work in new ways. For example, suppose an artist creates a sculpture that replicates someone else’s copyrighted photograph. This would be an infringement on the photographer’s right to create derivative works based on his photograph.

Consult an Experienced Florida Copyright Protection Attorney

If you have any questions regarding the fair use of copyrighted works, particularly if your case involves the internet or digital works, contact a knowledgeable Tampa copyright infringement lawyer. Call Nelson Cyber Law, PLLC, at 1-800-440-5536 for a free 30-minute consultation.







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