What’s up with Fair Use? Part 1: An overview

Generally, the burden of proving the fairness of the use is on the alleged infringer.Fair Use is always a topic that inspires a lot of misinformation and misunderstanding. It’s often spouted as a catch-all term to justify infringement, which (in my opinion) belittles its legitimate use as an important facet of copyright law. This post will be the first in a series that will start with an overview of what Fair Use is, where it comes from and how it’s used. Then, in the upcoming weeks, I’ll look at the legal nuances each of the four factors individually. Let’s get started.

What is it?

Fair use was originally a judge-made doctrine that was eventually codified into the 1976 copyright act. Section 107 of the U.S. copyright law states that: …the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. It then goes on to detail four factors that courts now use to determine whether or not the infringing use qualifies as fair.

How is it used?

This is where things get confusing. You see, fair use is what attorneys call an “affirmative defense.” Here’s an example of how that works:

  1. Person A uses Person B’s copyrighted work in their movie.
  2. Person B sues Person A for copyright infringement.
  3. Person A admits that they infringed on the copyright, but claims as part of their defense that their use was fair.

This costs money. Lots and lots of money.Whether or not it is fair use, however, isn’t determined up front. Generally, the burden of proving the fairness of the use is on the alleged infringer. This means that Person A in the example above must go to trial (or at least the summary judgment phase) in order genericcialis-pharmacy to make that case. This costs money. Lots and lots of money. Therefore, the deck is stacked against the infringer in fair use cases. The average person most likely cannot withstand a long court battle against a larger company whose copyright is at issue. This is why it is usually a bad idea to base a business model on fair use, outside of something that has already been settled, such as news reporting or criticism.

Quiz yourself: Is this image a fair use?
Quiz yourself: Is this image a fair use?

What are these four factors you talked about?

The four enumerated factors in the copyright statute are:

  • 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 the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

The problem with fair use is that, procedurally, you never know what the outcome will be until you get the judge’s decision.Each has its own nuances and does not necessarily mean what you might think when reading the text of the statute. Many cases seem to hinge on one factor in particular, but it is important that you know that no one factor is dispositive. This means that, while one may seem to be heavily in the infringer’s favor, it may still go the other way due to the strength of the others. The problem with fair use is that, procedurally, you never know what the outcome will be until you get the judge’s decision. Again, this costs lots and lots of money. If you need to rely on fair use, it is usually better to get a license from the copyright holder. This can avoid tons of legal trouble, even when the infringer is in the right. Next week we will check out the first factor, the “purpose and character of the use.” In the meantime, why not grab my FREE eBook, “The 5 Legal Moves Every Game Developer Should Make”? It covers the five major areas where the law interacts with game development, and is totally free. Just sign up below or up at the top of the page. And if you are in need of a game lawyer to help with a fair use analysis, feel free to contact me to set up a free consultation. photo credit: Orange County Archives via photopin cc and my awesome Meme Generator skills.

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Zachary Strebeck

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