Under United States copyright law, which includes, but is not limited to, the Copyright Act of 1976, copyrighted creative works cannot be used by others without the copyright holder's consent in most cases. Circumstances under which a third party may use a copyrighted work are known as fair use of the work and when they occur, they are not considered to be an infringement of the work’s copyright.
Copyrights Offer Protection of Creative Works
Creative works are automatically copyrighted under U.S. law. These works include songs, novels, images, code used to create video games and original characters. Creators may obtain additional intellectual property protection by registering their copyrights with the United States Patent and Trademark Office (USPTO), but this step is not necessary for obtaining a copyright in the way it is necessary for obtaining a trademark or a patent. By registering a copyright with the USPTO, a creator becomes able to pursue a copyright infringement claim.
Understanding the Fair Use Definition
Although fair use is nuanced, it is easy to make the fair use definition simple. Fair use is defined as any use of a copyrighted work that does not require permission from the individual who holds the work’s copyright. The general fair use definition is that fair use is any use of a work that is not done in an effort to profit from the copyrighted work.
Beyond fair use, a copyrighted work may be legally used if the user has the copyright holder’s permission. This permission could be as simple as verbally allowing the derivative creator to use the copyright holder's work in specific ways or it could be a legally binding licensing agreement that compensates the copyright holder financially for the authorized use of his work.
Determining Whether Fair Use Occurred
The Copyright Act does not prevent a copyrighted work from being referenced or used in all circumstances. When there is a dispute regarding whether the use of a copyrighted work falls under the fair use definition, the court examines the instance by applying these four factors:
- The purpose and character of the use of the work.
- The nature of the copyrighted work.
- How much of the copyrighted work was used.
- How the use of the copyrighted work could impact the original’s market.
In a copyright infringement case, the court broadly considers each of these four points to determine whether the use of the work falls within the legal definition of fair use. To make the fair use definition simple, the court must determine whether the work was used for a commercial purpose or not. Generally, using a copyrighted work in research, to comment on the work or to teach students is considered fair use, but using a copyrighted work to defame its creator or to create a new, for-profit work is usually deemed copyright infringement. However, there are cases where the for-profit use of a copyrighted work may be protected under the fair use doctrine.
Breaking Down the Four Factors
The first of the four factors of fair use is the purpose and character of the unauthorized use of the work. If the work was used for an educational or commentary purpose, such as including a photograph of a work of art in an art history textbook or an academic’s critical analysis of the themes in a blockbuster movie, it is more likely to be deemed fair use than if the art piece had been printed to be hung in a public gallery or a movie was screened in a for-profit theater without acquiring the rights to screen the film.
The next factor is the nature of the copyrighted work – whether it is primarily an informational work or an entertaining one. Generally, use of informational works, like documentaries and nonfiction books, are more likely to be deemed fair use than unauthorized use of works created to entertain. This ties into another one of the factors – how the unauthorized use could impact the potential market for the original. If the use of a work could potentially drive consumers away from the original work, it is unlikely to be considered fair use.
How much of the original use of a work was used without its creator’s permission is another important consideration when determining fair use. Using a brief snippet of a song in a video game has a much different impact than using a full version of the song in the game. How much of the work was used refers to more than just the quantity of the work repurposed; even a small portion of a work deemed to be substantial, like a song’s iconic opening riff, can be deemed to be copyright infringement.
Examples of Fair Use
An easy way to make the fair use definition simple is to take a look at examples of fair use. Circumstances that are generally considered fair use include:
- Quoting a song’s lyrics in a review of the song, the album or a concert where the song was performed.
- Including a clip of a news program in a show commenting on how the news program handled the event covered.
- Paraphrasing text from a novel or nonfiction book in a collegiate essay.
- Showing a nature documentary to a biology class.
Common Issues With Fair Use
One of the most common issues with fair use is the question of whether parody and satire count as copyright infringement. Generally, parody is considered fair use, but satire is not. This is because a parody critiques the work it imitates, whereas satire imitates existing works to critique specific individuals, cultural trends, current events and ideas. Despite this, it is possible for a parody to be deemed copyright infringement and satire to be deemed fair use after applying the four factors identified by the Copyright Act.
Another one of the common issues with fair use is whether a work is transformative and how the transformative nature of the use impacts the original work. For example, an artist might opt to include Mickey Mouse in a painting. If the artist chose to include Mickey Mouse as a way to critique the Disney corporation or the culture that it inspired, the painting may be deemed transformative enough to qualify as fair use. In contrast, a simple portrait of Mickey Mouse with no transformative element is not likely to be considered fair use and could subject the artist to a copyright infringement claim.
Read More: For Profit Vs. Non-Profit Copyright Laws & Fair Use Issues
Legal Recourse for Copyright Infringement
When a copyrighted work is used without its creator’s permission and does not fall within fair use, the use is known as copyright infringement. The copyright holder may take legal action to recover damages associated with the unauthorized use and to require the infringing party to stop using her work without permission.
Typically, the first response to an instance of copyright infringement is a cease and desist letter. This is a letter sent from the creator’s lawyer demanding that the infringing party stop all unauthorized use of the work immediately in order to avoid legal action. When this does not garner the result the copyright holder wants, she may opt to file a copyright infringement claim.These claims are handled by federal courts, since they invoke federal law.
If the court rules that copyright infringement occurred, the copyright holder may be compensated for her related losses. If the court rules that the unauthorized use is fair use, the defendant may continue to use the copyrighted work as he had been.