Wednesday, May 8, 2013

The "fair use" exception to copyright infringement.

Yesterday, I wrote about copyright infringement as it relates to Usher's situation. For the unaware, Usher and Justin Bieber are being sued for copyright infringement. Unless the plaintiff's account of facts is inaccurate, Usher and Bieber are probably liable for infringement.

Even if a defendant violates a copyright owner's right to reproduce, distribute, perform, display or prepare derivative works of a copyrighted work, there are exceptions to liability. One of which is "fair use," which is the most common exception to liability for infringement.

A "fair use" occurs when a defendant uses a copyrighted work for criticism, comment, news reporting, teaching, scholarship or research. Contrary to popular opinion, it is not automatically a fair use if you do not make money off of it. Even if you use a work for one of the specific fair uses in this paragraph, courts still look at four factors in determining whether to apply the exception in an individual case:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
  2. The nature of copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. The effect of the use upon the potential market for or value of the copyrighted work.
So for instance, even if you use a work for scholarly purposes, it may not be a fair use if you affect the potential market for sales of the copyrighted work. Or if you use the work for criticism, it may not be a fair use if you use the entire work in your critique.

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