The Copyright Thread: The Fair Use Doctrine in the US

Discussion in 'Industry News' started by TonyG, May 4, 2018.

  1. TonyG

    TonyG Guest

    This thread is the third article on a series of copyright related posts I have created to explore copyright laws and treaties in the United States. Specifically, this post is a brief overview of the principles of fair use.

    "Fair use" is the concept within the copyright law which weighs the delicate balance between use and protection. It is based on the belief that the public is entitled to freely use portions of copyrighted materials for a limited and “transformative” purpose such as commentary and criticism or parody. Fair use is an affirmative defense to copyright infringement. Whether or not use of materials is considered fair use is always decided in a court of law.The four factors judges consider are spelled out in Section 107 of the copyright Act of 1976:

    1. The purpose and character of your use.The central question of this factor is whether and to what extent the new work is transformative.This is a critical issue because the more the appropriator is using the copied material for new, transformative purposes, the more it serves copyright’s goal of enriching public knowledge and the less likely it is that the appropriation will serve as a substitute for the original or its plausible derivatives.

    2. The nature of the copyrighted work. The second statutory factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.Two types of distinctions as to the nature of the copyrighted work have emerged that have figured in the decisions evaluating the second factor: (1) whether the work is expressive or creative, such as a work of fiction, or more factual, with greater leeway being allowed to a claim of fair use where the work is factual or informational, and (2) whether the work is published or unpublished.the scope for fair use involving unpublished works being considerably narrower.This factor is rarely found to be determinative.

    3. The amount and substantiality of the portion taken. The clear implication of this inquiry is that a finding of fair use is more likely when small amounts, or less important passages, are copied than when the copying is more extensive, or encompasses the most important parts of the original. The test is whether the quantity and value of the materials used are reasonable in relation to the purpose of the copying.

    4. The effect of the use upon the potential market. At this stage, courts ask whether the copy brings to the marketplace a competing substitute for the original, or its derivative, so as to deprive the rights holder of significant revenues because of the likelihood that potential purchasers may opt to acquire the copy in preference to the original. The concern is not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps the market of the original work.The fourth factor is also, however, closely linked to the first, in the sense that the more the copying is done to achieve a purpose that differs from the purpose of the original, the less likely it is that the copy will serve as a satisfactory substitute for the original.

    It’s important to understand that these factors are only guidelines. The courts are free to adapt to particular situations on a case‑by‑case basis. In other words, a judge has a great deal of freedom when making a fair use determination, so the outcome in any given case can be hard to predict. Fair use of music is extremely limited.I recommend that you consult an attorney or rights clearance agency before you use any music under copyright protection for anything other than your own personal use.

    The information in this post is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should construed as legal advice from Audiosex or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this thread without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.
    Last edited by a moderator: May 28, 2018
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  3. Luka

    Luka Platinum Record

    May 10, 2018
    Likes Received:
    All over the place
    Thank you for pointing me to this thread. Wow! Exactly what I was looking for. Thanks and once again I apologize for my lack of discretion earlier
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