"Fair Use" Doctrine
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Fair Use Overview
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Where should we start in understanding the "fair use" of copyrighted works? Well, like most legal analyses, we want to first see if the U.S. Constitution has anything to say about the topic. If you explore the U.S. Constitution, you’ll find out that it does discuss issues associated with copyright law, which "fair use" is derived from.

Article 1, Section 8, Clause 8 of the United States Constitution states that:
Congress shall have the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
This clause is sometimes referred to as the Copyright Clause or Copyright and Patent clause. This is because the clause talks about "authors" and "writings," which deal with copyrights. (The clause also talks about "inventors" and "discoveries," which deal with patents.) So, copyright laws are based on federal law, as opposed to state law, because the U.S. Constitution actually grants Congress the power to regulate copyright law.

In short, copyright law protects how an author, i.e. creator, made or expressed him or herself. And copyright law gives the owners of copyrighted works lots of protections, but these protections are not unlimited. (In fact, one of the biggest limitations on copyrighted works is known as the "fair use" doctrine.

So, what exactly is the "fair use" doctrine and how does it work with copyrighted materials? The "fair use" doctrine arises when a copyright owner sues a person who may have committed copyright infringement.

The copyright owner, i.e. plaintiff, must show prima facie evidence (i.e. basic evidence) that the potential copyright infringer, i.e. defendant, committed copyright infringement. If the plaintiff shows this prima facie evidence, then the defendant could use the "fair use" doctrine as a defense to copyright infringement. In other words, "fair use" means that an individual can use the copyrighted material of another individual without the copyright owner’s permission for certain things.

For example, there are many different situations where a person can "fairly" use the copyrighted work of another without getting the owner’s consent. Under the Copyright Act of 1976, 17 U.S.C. § 107, "fair use" includes the use of a copyrighted work for such purposes as:
  • News reporting
  • Criticism
  • Comments
  • Teaching
  • Scholarship
  • Research
However, in order to determine what constitutes "fair use" for each particular situation, a 4-factor balancing test was established. The 4-factor balancing test looks at:
  1. purpose and character of use
  2. nature of the copyrighted work
  3. amount and substantiality of the portion used from the copyrighted work
  4. effect on the value of the copyrighted work
Courts can also consider other factors, but these are the factors that Congress created based on prior judge-made laws.

Next, we’ll explore these 4 factors in some more detail.