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What is “fair use” in the copyright context?

You’ve worked hard to create your work of art, and now you’re trying to monetize it. That’s a difficult endeavor, and one that can be quickly thwarted by those who infringe on your intellectual property. To fully secure the value of your work, you need to be able to police your intellectual property and raise legal challenges when infringement has occurred. When you do so, though, you’ll need to be prepared to address a number of defenses.

What is fair use?

One commonly employed defense to copyright infringement is fair use. This is a legal doctrine that provides protection for the use of copyrighted works that would otherwise be considered infringement. When addressing fair use, a court will assess a number of factors. Let’s look at them here:

  1. The purpose and character of the use: This factor has many considerations that have to be taken into account. For example, uses that are educational and non-commercial in nature are more likely to be deemed fair use, and so, too, are uses that transform the work into something of a different character. So, you’ll want to consider the underlying circumstances of the use to see if it puts you at an unfair disadvantage in the marketplace or if it otherwise affects your ability to use your work.
  2. Nature of the work: When it comes to fair use, not all copyrights are created equal. Those that have extensive creative expression are likely to be given more protection, thereby limiting the fair use exception, while works that are less creative will be more susceptible to the fair use exception.
  3. The amount of the work used: If the entire work is appropriated, then that may tip the scales towards infringement. Using only pieces of a copyrighted work, though, may be considered fair use. Keep in mind, however, that all the factors have to be considered together. So, in some circumstances, even the use of an entire copyrighted work may be deemed fair, and the use of a small but significant portion of a work may be considered infringement.
  4. Market effect: Here, a court will consider how the use of the work will affect the copyright holder’s ability to use his or her work in the marketplace now and moving forward, particularly if there is a risk that the unapproved use of the work could become pervasive.

When is use considered fair?

Generally speaking, the fair use exception is most commonly applied in situations of commentary, criticism, and parody. For commentary and criticism, courts tend to view the use of a copyrighted work as a benefit to the public. But remember that the factors mentioned above will be taken into account. With parody, courts tend to view the process as transformative and therefore different enough from the copyrighted work so as to not affect the copyright holder’s ability to benefit from copyright protections. Parody also interacts with one’s right to free speech. So, when you’re looking at your case, consider whether the use at hand involves criticism and commentary or parody.

Don’t leave your hard work at risk

There’s a lot of value in a copyrighted work. And you’ve put a lot of effort into creating it. Don’t let all of that hard work go to waste when infringement occurs. Instead, carefully think through what you can do to protect your interests, stop infringing use, and recover the compensation that you’re owed. This will likely involve legal action through injunctive relief and a claim for damages. If that sounds daunting to you, or if you just want a strong legal advocate on your side, then now may be the time to discuss your circumstances with an attorney who you can trust.