Intellectual Property

Fair Use

A copyrighted work may be reproduced without constituting copyright infringement if it is for a protected purpose and if it is fair use. In determining whether a use is fair use, four factors are considered.

Fair use is largely judicially-created, as it was created and defined before being codified in the Copyright Act and statutory law is not very specific about how to define it.

Protected Purpose

A protected purpose is something such as criticism, comment, news reporting, teaching, scholarship, or research.

Parody is a subset of criticism or commentary, and thus parody works must direct commentary or criticism at the work. Just being a parody or funny is not a protected purpose. The leading case on the matter is Dr. Seuss Enterprises v. Penguin Books.

Factors
  1. Purpose and character of the use
    • Commercial or non-profit?
  2. Nature of the copyrighted work
    • Has it been transformed into something beyond the work itself?
    • Fact-based works are more likely to be fair use than creative works
  3. Portion of the copyrighted work used
  4. Effect of the use on the market
    • Hardest to determine
    • Most important