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  • Curington Law, LLC

What is Fair Use in Copyright Law and What are its Elements?



Fair use is a legal doctrine that allows the use of copyrighted material without getting permission from the copyright holder. It is an important concept because it gives creators certain rights to use copyrighted material for transformative purposes such as educational, research, or critical purposes. The U.S. Copyright Act outlines four factors that must be considered when determining if a use of copyrighted material is fair. This guide will take a look at these factors and how they can help determine whether use of copyrighted material falls under the fair-use doctrine.


The Four Factors of Fair Use


The four factors outlined in the U.S. Copyright Act are as follows:


1) The purpose and character of the use;

2) The nature of the copyrighted work;

3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4) The effect of the use upon the potential market for or value of the copyrighted work.


Each factor should be considered when determining whether or not a particular usage qualifies under fair-use laws. Let’s take a closer look at each factor in turn.


1) Purpose and Character: This factor looks at why you are using the material in question and how you are using it. If you are using it for transformative purposes such as education, criticism, or research, then your usage may qualify as fair use. On the other hand, if you are using it for commercial purposes (i.e., to make money), then it likely does not qualify as fair use.


2) Nature of Work: This factor looks at what type of work is being used—for example, a book versus a movie—and how much originality was involved in its creation (i.e., its “creativity”). Generally speaking, works with more creativity will receive more protection than those with less creativity (e.g., factual information). Therefore, using creative works may limit your ability to claim fair-use protection even if you are using them for educational or research purposes.


3) Amount Used: This factor looks at how much material has been used in relation to the entire work—for example, quoting one sentence from an article versus quoting an entire page from it would be very different uses under this factor. Generally speaking, if you only need to copy small portions of a work then this factor will favor your usage qualifying as fair use; however, if you need to copy large portions then this factor will weigh against your usage qualifying as fair-use because doing so could have an effect on potential sales/profits made by the copyright holder(s).


4) Effect on Market Value/Potential Market Value: This last factor looks at how your usage affects any potential market value/profits made by copyright holders for their works—in other words, does your usage replace any potential sales/profits that could have been made by selling licensed copies? If so then this will weigh heavily against your usage qualifying as fair-use since doing so would deprive copyright holders from making profits on their works (which they have exclusive rights to do). On the other hand, if there is no direct effect on any potential market value/profits made by copyright holders then this factor should favor your usage qualifying as fair-use since doing so would not deprive them from making profits on their works (which is what copyright law seeks to protect).


In summary, when determining whether or not a particular usage qualifies under fair-use laws one should consider all four factors outlined in US Copyright Law—purpose and character; nature of work; amount used; effect on market value/potential market value—before making any determination either way about said usage qualifying (or not qualifying) under said laws. By understanding these elements and applying them thoughtfully when considering uses of copyrighted materials one can make sure that their own uses fall within acceptable legal boundaries while still providing them with ample protection against infringement claims downroad due to their activities meeting all criteria necessary for claiming said protection under said laws. Ultimately though, only an experienced lawyer can provide definitive advice regarding specific situations so keep that in mind whenever seeking clarification about whether or not something constitutes “fair use” before proceeding with any activity involving possible infringement issues.


For more information and assistance with copyright law and fair use, contact Curington Law, LLC at 312 803-1755 or online.

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