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:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- The nature of copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- 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.