Advertising can be the lifeblood of a business. Regardless of the medium used, advertising is an important way to draw in new customers and reestablish your relationship with existing ones. But advertising can also be a minefield of potential litigation, particularly copyright infringement. Will ‘fair use’ help you avoid those landmines?
What is the doctrine of fair use?
U.S. Copyright Law exists to protect the intellectual property of creators and inventors. It’s a means of encouraging individuals to push the boundaries of science, art and literature, by assuring them that they will have exclusive rights to their creation – for at least some time. Everything from books and paintings to movies and software programs are protected by these laws, requiring anyone who wants to use them (other than the owner) to first gain permission.
The fair use doctrine is an exception to copyright exclusivity and it has become more prominent with the ubiquitous nature of social media. But to avoid litigation, it’s important to understand what it actually means. Section 107 of the Copyright Act defines fair use – it permits the use of otherwise copyrighted materials for purposes such as commentary, teaching and research.
Courts will ask a number of questions to determine whether the doctrine applies. What is the purpose of the usage? Is it commercial in nature or not for profit? What’s the nature of the copyrighted work? A purely creative work is more likely to fail the fair use doctrine than one which is more factual in nature. How will using the work affect the market for the work? Will it take compensation from the copyright holder? And finally, how much of the work is actually used? Using a single quote or short passage from a book is more likely to be considered fair use than including an entire chapter.
None of these factors should be taken in isolation. It’s only by looking at your advertisement as a whole, and its relationship to the entirety of the copyrighted material, will you be able to determine if something is fair use or not. When in doubt, consult with an experienced professional who is knowledgeable in copyright law and the fair use doctrine.