FAQs

What Is the Fair Use Defense?

What Is the Fair Use Defense?

The fair use doctrine allows the use of copyrighted work in a way that would normally infringe the copyright. The fair use doctrine is most often used as a defense to a copyright infringement claim. Fair use provides an exception to the rule that copyright holders have the exclusive right to reproduce and distribute their work. It allows creativity where copyright law might otherwise stifle it.

What qualifies as fair use?

Uses of copyrighted work for purposes such as news reporting, criticism, comment, scholarship, research and teaching are typically, but not always, seen as fair use. The court will consider at least four factors when it decides whether the defendant infringed the plaintiff's copyright:

The purpose and character of the use

The first factor concerns why and how the defendant used the plaintiff's copyrighted material. If the use was for profit, then it is less likely to be considered fair use. This is not always the case, however.

The nature of the copyrighted work

The second factor has to do with the work that was copied. Fictional works, rather than factual ones, often have stronger protection under copyright law. This is because expression, rather than facts and ideas, qualifies for copyright protection.

The amount and quality of the work that was copied

The third factor measures how much of the original work was copied. The more copying, especially of the substantial parts of the original work, the more likely it is that the copyright was infringed.

When the defendant has created a parody, the analysis is similar. A parody must quote some of the work that it references so that the audience will know what the parody is about. The issue is whether the defendant's use of the plaintiff's material was excessive or just enough to orient the audience and get its point across.

The effect of the copying on the potential market for the copyrighted work

The fourth factor is often regarded by courts as the most important. It concerns the impact of the defendant's use on the market for the plaintiff's work. If the use negatively affects the market by criticizing the plaintiff's work, it is not copyright infringement. If the defendant copies the original so closely that its product acts as a substitute for the plaintiff's, however, it is likely to be infringement.

The court will take all these factors, and perhaps others, into consideration to make a decision on whether the defendant's use of the plaintiff's work is fair use.

How does the fair use defense apply to me?

Fair use can be a difficult doctrine to apply because it is invoked only as a defense to allegations of copyright infringement and it requires a heavily factual analysis. Still, the four-factor test described above can provide guidance to a party that is unsure of whether the use of a work is copyright infringement. An intellectual property attorney can provide further insight into the fair use doctrine.

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