Malcolm Rivera
Fair use is a limitation on a copyright owner's exclusive rights, allowing limited use of copyrighted material without permission under certain circumstances. There are no bright-line rules for determining fair use, and it is decided on a case-by-case basis. Courts consider four main factors when deciding whether use of copyrighted material is fair: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the market value of the copyrighted work. Use of copyrighted material for purposes such as criticism, commentary, news reporting, teaching, scholarship, and research is generally considered fair use. However, using a large portion of copyrighted material, especially the most memorable or heart of the work, is less likely to be considered fair use.
| Characteristics | Values |
|---|---|
| Purpose and character of the use | Whether the use is commercial or for non-profit educational purposes |
| Nature of the copyrighted work | Whether the work is creative or factual |
| Amount and substantiality of the portion used | Whether the portion used is large or small in relation to the whole work |
| Effect on the market | Whether the use affects the market for or value of the copyrighted work |
| Transformative nature of the use | Whether the use adds something new, with a further purpose or different character |
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What You'll Learn
Using a large portion of the work
Using a large portion of copyrighted work is less likely to be considered fair use. Courts consider the quantity and quality of the copyrighted material used, and if it includes a large portion of the original work, fair use is less likely to be found. This is the third of four factors that courts use to resolve fair use disputes. The other three factors are:
- The purpose and character of the use, including whether the use is of a commercial nature or for non-profit educational purposes.
- The nature of the copyrighted work, i.e., whether it is published or unpublished, and how creative the work is.
- The effect of the use on the potential market for or value of the copyrighted work.
The purpose and character of the use is the single most important factor in determining whether a use is fair. Fair use is more likely to apply if the copyrighted work is used for criticism, commentary, news reporting, teaching, scholarship, or research. Courts will also consider whether the new work is transformative, i.e., if it adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.
The second factor is typically the least important of the fair use factors. Unpublished works are generally accorded more protection than published works, as the author has a strong right to determine whether and when their work will be made public. Works that are factual and less creative are more susceptible to fair use than imaginative and highly creative works.
The fourth factor considers the effect of the use on the market value of the original work. If the use of copyrighted material affects the market for or value of the original work, it is less likely to be considered fair use.
It is important to note that the only way to get a definitive answer on whether a particular use is fair is to have it resolved in federal court. While the Fair Use Index can provide guidance, it is not a substitute for legal advice, and it is recommended to consult an attorney if you are concerned about whether a particular use is fair.
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Using the 'heart' of the work
Using the "heart" of a copyrighted work weighs against fair use. This means that if you take the most memorable or interesting aspect of a work, you are more likely to run into legal issues. For example, it would probably not be considered fair use to copy the opening guitar riff and the lyrics "I can't get no satisfaction" from the song "Satisfaction". This is because the "heart" of the work is what most readily conjures up the original work, and it is the "heart" at which parody takes aim.
However, this rule does not apply to parody cases. A parodist is allowed to borrow and use the "heart" of the original work to conjure up the original work and hold it up to ridicule. For example, Barry Trotter and the Unauthorized Parody by Michael Gerber is a parody of Harry Potter and the Sorcerer's Stone by J.K. Rowling.
It is important to note that the purpose and character of the intended use of the material involved are crucial factors in determining whether a use is fair. Courts will consider whether the use of the copyrighted material is for commercial or educational purposes, whether the work is informational or for entertainment, and how much of the copyrighted work is being used.
Additionally, the use of copyrighted material should not deprive the copyright owner of income or undermine a new or potential market for the copyrighted work. This is another important factor that courts consider when determining fair use.
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Copying verbatim
Verbatim copying refers to the act of reproducing text from a source and pasting it directly into one's own document. While verbatim copying may be necessary in certain situations, it generally constitutes plagiarism if not done correctly. To avoid plagiarism when copying text verbatim, one must put the copied text in quotations and cite the source. Even if a few words are deleted or replaced with synonyms, it still counts as verbatim copying, and proper citation is required.
Verbatim copying can have serious consequences, especially in academic and professional settings. Plagiarism can damage one's reputation and may even lead to losing research funding or one's job. In some cases, plagiarism can result in legal consequences for copyright infringement. To maintain academic integrity, it is crucial to avoid misleading readers and refrain from offences like plagiarism and contract cheating.
According to the Copyright Act of 1976 and the Copyright Act of 1986, fair use of copyrighted material is permitted for purposes such as criticism, commentary, news reporting, teaching, scholarship, and research. Courts consider several factors when determining fair use, including the purpose of the use, the nature of the copyrighted work, the amount of the work used, and the impact on the market value of the copyrighted work.
When using copyrighted material, it is essential to understand the limitations of fair use. Verbatim copying, if not done for transformative purposes or within the boundaries of fair use, can constitute copyright infringement. It is important to remember that the specific laws and consequences related to verbatim copying and fair use may vary depending on the jurisdiction.
To summarise, verbatim copying of copyrighted material without proper attribution can have significant repercussions. To avoid plagiarism and copyright infringement, it is crucial to follow the guidelines of fair use and provide appropriate quotations and citations when using someone else's work.
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Commercial use
Copyright is the right of a creator to control how others use their original work. The creator has the exclusive right to reproduce, distribute, and adapt their work. When it comes to commercial use, there are several factors that determine whether using copyrighted material constitutes fair use.
Firstly, the purpose and character of the intended use are important. Using copyrighted material for commercial purposes is generally less likely to be considered fair use than using it for educational or non-profit purposes. For example, if an instructor uses copyrighted material for significant commentary, criticism, or explanation in a classroom setting, it is more likely to be considered fair use. However, if the same material is used for a commercial purpose, such as in a for-profit course or a commercial database, it is less likely to fall under fair use.
Secondly, the nature of the copyrighted work is a factor. Using creative or imaginative works, such as novels, movies, or songs, for commercial purposes is less likely to be considered fair use than using factual or informational works, such as news items or technical articles. Additionally, using unpublished works commercially is less likely to be deemed fair use.
Thirdly, the amount and substantiality of the copyrighted work used come into play. Courts consider both the quantity and quality of the material used. Using a small amount of copyrighted material for commercial purposes may be more likely to be considered fair use, while using a large portion or the entire work is less likely to fall under fair use.
Lastly, the effect on the market or value of the copyrighted work is important. If the commercial use of copyrighted material affects its potential market or decreases its value, it is less likely to be considered fair use. For example, if the commercial use substitutes or supplants the original work, it may not be deemed fair.
It is important to note that these factors are not exhaustive, and each case is determined based on its specific circumstances. Seeking legal advice and understanding the fair use doctrine is crucial before using any copyrighted material for commercial purposes.
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Without permission
Copyright law gives creators exclusive rights, including the right to reproduce, distribute, and adapt their works. However, fair use permits the use of copyrighted material without the owner's permission under certain circumstances.
Section 107 of the Copyright Act of 1976 states that fair use of copyrighted material is allowed for "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." These purposes are not exhaustive, and fair use is determined on a case-by-case basis.
When determining whether a use is fair without the owner's permission, courts consider four main factors:
- Purpose and character of the use: The single most important factor is the purpose and character of the intended use. Using copyrighted material for commercial purposes weighs against fair use, whereas non-profit educational purposes are more favourable. The courts also consider whether the use is "transformative," meaning it adds something new or alters the original with a different expression, meaning, or message.
- Nature of the copyrighted work: Using creative or imaginative works, such as novels, movies, or songs, is less likely to support fair use than using factual or informational works, such as technical articles or news items. Additionally, using unpublished works is less likely to be considered fair use, as the author has the right to control the first public appearance of their expression.
- Amount and substantiality of the portion used: Courts consider both the quantity and quality of the copyrighted material used. Using a small amount of copyrighted material is more likely to be considered fair use. However, even if a small portion is used, it may not be considered fair if it is the "heart" or most memorable aspect of the work.
- Effect on the market or value of the copyrighted work: Courts consider whether the use affects the potential market for or value of the copyrighted work. If the use negatively impacts the market for or reduces the value of the original work, it is less likely to be considered fair use.
It is important to note that these four factors are not exhaustive, and each factor has subfactors that must be weighed together. The best way to get a definitive answer on whether a particular use is fair is to have it resolved in federal court. Additionally, while resources like the Fair Use Index can provide guidance, they are not a substitute for legal advice, and specific situations may require consulting an attorney.
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Frequently asked questions
No, giving credit and fair use are completely separate concepts. Either you have the right to use another author's material under the fair use rule, or you do not.
Yes, limited use of copyrighted material for educational purposes is allowed. For example, an English teacher is permitted to copy a few pages of a book to show to the class as part of a lesson plan.
No, you must obtain permission from the copyright holder unless fair use or another exemption applies.
