It is a reality, however, that perhaps no issue creates more uncertainty in the copyright law than that of "fair use." Its interpretation is vague and meaning unclear enough to, in the words of the cliché, drive an electronic truck through. I realize that this makes "fair use" somewhat unfair but that is the way it is.
The copyright law itself recognizes several statutory categories of fair use, but unless the use falls within those categories, and even if it does, the best advice would be to seek written permission before using the material. (read "Respect for the Law") And the reason this is the best advice is because no one, not a lawyer, not a publisher, not even a judge or jury is likely to be able to tell you in advance whether a given use is going to be held as "fair." The standards used for determining such use only come into play when there is a litigation since fair use is a defense to a claim of infringement. Therefore, any reliance upon the doctrine before such determination is made seems a false and unwise reliance.
Notwithstanding the provisions of sections 106 and 106A [17 USC sects 106, 106A] 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.Since the general guidelines that the courts use to make a determination of what is "fair use" fall within these above parameters, let me offer a brief explanation of each category:
The above are just some but certainly not all of the many, many factors and issues that go into the determination of whether or not a given use is a "fair use." In short, there are no concrete rules in this area. Whatever you may have believed is probably not a reliable guideline and each use of copyrighted material is going to be determined on its own merits.
The lesson: It is not wise to rely upon fair use when deciding whether to copy anyone else's protected materials. Always obtain a license from the owner of the rights.
Copyright © 1996, 1997, 2019 Ivan Hoffman. All Rights Reserved.
This article is not legal advice and is not intended as legal advice. This article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed.You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article is based on United States laws but the laws of other countries may be different. You should consult with an attorney familiar with the issues and the laws of your country. This article does not create any attorney client relationship and is not a solicitation.
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