FUNDAMENTALS OF COPYRIGHT AND FAIR USE
Original works, protected under copyright law, include literary, dramatic, artistic and certain other
types of intellectual works.
Copyright gives the original author certain rights, including the right
to reproduce the work, to prepare derivative works, to distribute or sell copies, to transfer
ownership, to perform the work publicly, and in the case of sound recordings to perform or
broadcast the work.
General information about copyright can be found at the Patent and
Trademark Office web site,
To use or reproduce work that has been copyrighted, it is necessary either to obtain the permission
of the copyright holder, or come within an exception to the exclusive rights of the copyright
Permission is always the clearest and safest means to be certain that use is authorized.
THE FAIR USE EXCEPTION
One of the most frequently used exceptions to the exclusive rights of a copyright holder is the
doctrine of fair use.
of the Copyright Law, 17 USC 107, makes clear that a fair use
does not constitute copyright infringement and is present when the work is used for, among other
things, criticism, comment, news reporting, and teaching, scholarship or research.
There are four factors to be considered in determining whether a use is fair.
Each must be
considered, and each has a sliding scale.
Application of these factors is complicated because one
factor may suggest a fair use, and the next may suggest the opposite.
Hence, the determination of
whether a particular use is fair is rarely clear, certain or free of doubt.
The following are the four factors that must be weighed in any fair use determination:
the purpose and character of the use;
the nature of the copyrighted work;
the amount of the work that will be used in relation to the whole copyrighted work; and
the effect the use would have on the market for or value of the copyrighted work.
Each is more closely analyzed below.
The purpose and character of the use
On the lists below, items on the left weigh in favor of fair use, whereas the commercial use listed