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What is Fair Use? Is My Use a Fair Use?

§107 of the Copyright Act exempts some “fair uses” of copyrighted content from infringement liability. Teaching, research, noncommercial personal use, criticism, parody, and news reporting are more likely fair use than other uses. In order for a use to be considered “fair” courts will consider:

  1. The purpose and character of the use (noncommercial v. commercial, parody, transformative, etc.)
  2. Nature of the copyrighted work (creative works are more heavily protected than factual compilations, for example)
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole (less is more likely fair)
  4. The effect of the use upon potential market for or value of the copyrighted work (for example, a Harry Potter encyclopedia might impact the potential market for Rowling’s protected right to create her own derivative work based on her novels).

The downside to fair use, however, is that it is a defense to an infringement lawsuit, not a true exemption. This means the copyright holder can still sue you, and you’d have to prove the use was fair. The worst part is that you bear all the costs to defend the lawsuit, which can be thousands of dollars. Additionally, third parties may hesitate publish or buy your work for fear of being sued for infringement.

If you intend to use a copyrighted work, it is best to obtain written permission from the author.



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