What is Fair Use Defense Against Copyright Infringement?

Generally, copyright law says that you cannot copy and distribute someone else’s copyrighted work without their permission. Permission may be expressly granted through a license, and often involves an exchange of money.

The only exception to this rule is the Fair Use Doctrine, which allows you to use copyrighted work for certain purposes.

The Fair Use doctrine is determined by a four part test:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
  4. The effect of the use upon the potential market for or value of the copyrighted work.


While these guidelines may seem a little complex, Fair Use is not met by simply meeting one of the four criteria. Courts evaluate and apply all of the factors outlined above when deciding whether your use of a copyrighted work constitutes fair use. 

Fair Use is a much discussed and often misunderstood doctrine in the U.S. Copyright Act.  

Many who apply Fair Use complain that it is debatable and should be more specific to fact situations. However, Fair Use is intentionally left open and flexible and its language allows you to apply the doctrine to your own specific fact situations.

Further, Fair Use is never a definite test unless a judge in a court of law makes that determination. This means that getting contended with Fair Use is important as is being able to make a judgment call as to whether fair use applies to your use of copyright-protected content. At the same time, this means understanding copyright risk management and being able to minimize your risks of unauthorized uses of copyright materials.


Fair Use Index

The U.S. Copyright Office provides a Fair Use Index. The point of the Index is to make “the principles and application of fair use more accessible and understandable to the public by presenting a searchable database of court opinions.” 

You may search the Index by category (such as, literary, artistic, musical work) and by your type of use (education/scholarship/research, parody, internet/digitization). The Index tracks court decisions at different court levels and is not intended to be a comprehensive archive of all fair use decisions ever decided. It is designed for Trademark lawyers as well as common users as it is user friendly. 

The Index sets out the name of the case, court, jurisdiction and year of the decision as well as whether fair use was found by the court. It is a very helpful database on fair use.

What Can You Do to Satisfy Fair Use?

Now that you know the rules to Fair Use, it is important to stick to these guidelines in order to satisfy Fair Use and stay out of Copyright legal troubles. 

You should always give credit to the artist or owner of the work. This includes the owner’s name, as well as other information that will help people find the original work or source.

Should the owner contact you and ask you to take the work down, do so promptly. 

While your use of the work may constitute fair use, you may be still infringing on a the copyright owner’s copyright, and it’s better to remove the work than become entangled in costly legal trouble.


Sam Mollaei, Esq., Copyright Lawyer, from Mollaei Law can be reached @ (818) 925-0002 or by visiting www.mollaeilaw.com