Fair Use of Another’s Work

The owner of a copyright has the exclusive right to do the following things with its copyrighted work:

  • Copy it
  • Distribute it
  • Publicly display it
  • Prepare derivative works based upon it
  • Publicly perform it
  • Publicly perform it by means of a digital audio transmission

Copyright owners can lawfully prevent others from using their works without prior written permission. Copyright infringement occurs when someone other than the copyright owner uses the owner’s work without permission.

The distinction between “fair use” and copyright infringement is quite murky. Unfortunately, there is no specific amount of copyrighted material that may safely be taken without permission, and acknowledging the source of the material is no substitute for obtaining permission. Thus, it is wise to seek and receive permission in writing before using the work of another.

“Fair use” is an affirmative defense to copyright infringement. An “affirmative defense” is when the defendant admits guilt (in this case, it admits copyright infringement), but claims it had a valid legal reason for doing what it did. If proven, the “affirmative defense” eliminates defendant’s responsibility. Thus, if proven, “fair use” will absolve a copyright infringement defendant of liability for infringement.

“Fair use” allows for the lawful use of another’s copyrighted work for purposes such as critique, review, teaching, and the like. To determine whether the use of another’s copyrighted material constitutes “fair use,” the Copyright Act requires examination of the following things:

  • The purpose and character of infringing use; is the use “commercial,” or “non-profit and educational”
  • The nature of infringed work (subject matter, type of work, market for work)
  • The percent of work taken (compared to the whole work)
  • The effect of infringing use on the market for the original (would purchasers choose the infringing work instead of the original)