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What is Fair Use?

While everyone has heard the term “fair use,” very few people know what it means. Many have some vague understanding that it allows you to use copyrighted material for free, but have no grasp of the circumstances and limitations surrounding its application. While no blog post is going to turn you into an expert on fair use, here is a quick primer on what you can do to avoid getting sued for what you thought was fair use.

Ignore the Urban Legends
I am not making money on it; it’s fair use.
They should be happy with the press,
I’m making them money, it’s fair use.
It didn’t have a copyright notice on it; it’s fair use.

If you are hearing these kinds of statements flying around your office, keep me in mind. You will likely need a copyright attorney in the very near future.    

Don’t Believe Everything You Hear
Better yet, you can take a little preventative action now and avoid ever having to go to court in the first place. So, what do you need to know about copyright. The first thing is to never believe anything about copyright law unless you hear it from a copyright lawyer; and even then you might want to check out a second or third opinion until you find a copyright attorney you can trust.

What is Fair Use?
In some situations it is permissible to use limited portions of a
copyrighted work, including quotes, for purposes such as commentary, news reporting, scholarly reports. This is particularly true for current news stories & historical analysis (to promote accuracy). The quoted material, however, must not be unreasonably large and must not destroy the market for the original work (quoting the salacious portions of Monica Lewinsky’s memoirs).

Be aware that courts rarely uphold a claim of “fair use” in a for-profit, commercial context unless the use is directly tied to parody, news or critical commentary. In determining whether your copying constitutes “fair use” the courts will look at:

1) The purpose and character of your work-Are you making money from the copies?
2) Nature of copyrighted work-Is it a form book meant to be copied?
3) Amount of work taken-Are you taking 90% of the work or 2%?
4) Economic impact of taking-Are you taking the 2% that makes people want to buy the original (Lewinsky passages)?

In determining whether a use is a fair use, courts weigh all of these factors, along with additional factors indicating why or why not your use might be allowable under copyright law. If you are copying 1% of the non-critical portions of a form book for your own personal use, you are okay. If you are selling 98% complete copies of the The Davinci Code, you are in trouble. For anything in between, it is best to either consult your copyright attorney for advice or stick with copying works already in the public domain.

Now, For the Really Important Question
Am I going to get sued? Curiously, the answer to this question often has little to do with the legal analysis. No law or lawyer can tell you whether you are going to get sued. Whether you are going to get sued depends much more on the motivations, as well as the relative strengths of the parties. Is the entity from whom you are taking the copyright work an 800lb gorilla run by the guy with an itchy trigger finger you fired three years ago? If so, a detailed analysis of the esoteric legalities of fair use under United States Copyright Law is kind of a moot point. You are going to get sued. And since you likely do not have the $30K+ to fight the case, you are likely going to lose or settle for far less than what might otherwise be considered “fair.”

Think Like a Business
While I am all for fighting the good fight and not paying the bad guy money to use against the next innocent victim, a Pyrrhic victory, or more likely complete immolation at trial, does not help anyone. You may think you are becoming a martyr for the cause, but getting wiped out in
court may actually do more harm to future victims than paying money.
Large corporations often use a track record of putting infringers out of business to extract settlements. The smartest move for you is to review your copyright material beforehand to check for any potential copyright problems. If you own a business, be sure to include "fair use" policies in your employee handbook. With copyright issues, an ounce of prevention can be worth about seven figures of cure.

For more on fair use, as well solutions to the most common internet law problems, be sure to check out CyberLaw: A Legal Arsenal For Online Business.

Brett Trout

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