Fair use is one of the most common defenses mounted in copyright lawsuits. Defendants who make this argument claim that they did not need to obtain permission to use protected intellectual property because they used it for a purpose that copyright laws allow. What is and what is not fair use is a legal gray area, so courts in New York and around the country make these decisions after weighing the facts involved.
The fair use defense is usually mounted when copyrighted works are used for purposes including comment, criticism or parody. This argument can also be made when protected materials are used in news reports or in classrooms. The courts are tasked with determining when fair use becomes infringement. For example, broadcasting a motion picture in its entirety and then adding a few seconds of comment at the end would not be considered fair use. However, including a short clip of the film in a review would probably be allowed.
When making these decisions, the courts consider four main factors. They look at how much of the copyrighted material was used and whether the use transformed the original work. They also consider whether the use of the material affected the material’s value or worth in the marketplace and the purpose for which it was used. Works of fiction, such as novels or plays, are generally provided more protection by the courts than factual works.
Attorneys familiar with the nation’s copyright laws could explain this type of defense to content creators who are confused about the fair use doctrine. When protected works appear to be being used for purposes not clearly covered by fair use, attorneys could send cease and desist letters to violators. If the infringement continues, attorneys could initiate intellectual property litigation.