Copyright and Fair Use

When a copyright holder sues a user of the work for infringment, one defense that the user may have is the defense of fair use. Under the fair use doctrine, it is not an infringement for one to use the copyrighted works of another in some circumstances. However, it is difficult to define what exactly constitutes fair use because courts consider the defense on a case by case basis, and the analysis of the defense varies with the facts of each case.

Although the fair use defense was available for many years, the doctrine was first codified by Congress in the Copyright Act of 1976 in Section 107. Section 107 gives a non-exhaustive list of examples of when the fair use defense could be successful. The list includes criticism, comment, scholarship, research, news reporting and teaching as uses that may be fair.

The list also gives four guiding factors courts will consider in deciding whether a use is fair or not. These factors are:

1. the purpose and character of the use,

2. the nature of the copyrighted work,

3. the amount and substantiality of the portion used, and

4. the effect of the use on the potential market for or value of the copyrighted work.

Of course, even with these factors, it is problematic and often unyielding to try to predict what uses a court will deem fair.

For more information, see the Frequently Asked Questions about Copyright and Fair Use.

Framing Challenged as Infringement

The George Washington University Law School Academic Information Center on Intellectual Property and Technology Law