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The Fair Use Doctrine

17 U.S.C. §107 grants a limitation on a copyright holder’s exclusive rights, through what is deemed fair usage of the copyrighted work. The statute allows for reproduction and derivation of copyrighted works for purposes of criticism, comment, news reporting, teaching, scholarship, and research.

In determining whether the use of a copyrighted work is not subject to infringement the following factors will be considered:

1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes. In this factor, the courts will look at whether the new work was transformative or whether the new work was merely a derivative of the original work. Works that comment or critique an original work are deemed to be transformative. Parodies also fall within the scope of a transformative use. Works that merely copy or appropriate aspects of the work or the entire work itself are deemed to be derivative of the original work. The court will also look at whether the work fills the justification of copyright law to stimulate creativity and cultural progress or whether the purpose of the use was to make monetary gains. Generally, nonprofit uses will more likely be deemed a fair use in comparison to commercial uses.

2) The nature of the copyrighted work. This factor asks what type of work is the original work.  When the original work is purely factual, it is far more likely that the work accused of infringing the original work will be deemed fair use. If the original work is more creative than factual, infringing uses will likely be deemed as not a fair use.

3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole. This factor assesses the quantity or percentage of the original copyrighted work used in the new, potentially infringing work. Generally, the less similarities between the works, the more likely fair use will be found.  However, in Sony Corp. v. Universal City Studios, an entire program was copied for private viewing and that was deemed a fair use.

4) The effect of the use upon the potential market for or value of the copyrighted work. The fourth factor measures the effect that the allegedly infringing use had on the copyright owner’s ability to exploit his or her original work in its market. The court also looks at whether such uses in general, if widespread, would harm the potential market of the original.

The amount that a person can use from another work very much depends on the other factors listed above. In certain circumstances, such as in the situation described above, it is acceptable to take an entire work without getting permission. There are also instances, such as with musical works, which allow someone to cover another song without obtaining the permission of the copyright holder. In that circumstance, all that would be necessary would be to pay the statutory rate and the copyright owner has no grounds for claiming infringement.


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