Fair Use as a Defense to Copyright Infringement Claims

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Fair Use as a Defense to Copyright Infringement Claims

A copyright protects the expression of an original idea and provides the holder with the exclusive rights to copy, modify, distribute, display and perform the work. Typical examples include protection for written works, music, dramatic works, films, artwork, architecture, software, and website design. A copyright does not protect the idea or concept itself, but the expression of it. Ideas and concepts may be protected via trade secret law and confidentiality agreements.

Under the U.S. Copyright Act, the use of a copyrighted work is considered “fair use” if it is used for purposes of criticism, comment, news reporting, parody, research, or teaching. Some of the factors that determine fair use include whether the use was noncommercial if only a portion of the work was used, and if using the work did not affect its market value.

When assessing whether fair use of a copyrighted work is a valid defense against infringement, courts consider these four Copyright Act guidelines:

Purpose and character of use. A court will consider whether the use of the copyrighted material was for a commercial or noncommercial purpose and whether the use was transformative — did it change the original work or create new ideas or information?

Nature of the copyrighted work. A court will examine whether the original copyrighted work was factual or creative and whether it was published or unpublished. Works that are creative in nature — art, photos, graphics, fiction, and creative nonfiction — usually receive more protection. Historical or factual works get less protection since society benefits from an open exchange of ideas. Since authors have the right to decide when or whether to publish their work, using unpublished material without permission is more difficult to defend as fair use than published works.

Usage of copyrighted material in part or as a whole. If a large portion of the copyrighted work was used — or if the usage included the central part of the copyrighted work — it is less likely that it will be considered fair use by a court unless the use was for the purposes of parody.

Effect of usage on value of copyrighted work. If the use of a copyrighted work deprives the original owner of income in the current market or dilutes value for a potential market, fair use protection will probably not apply.

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