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Copyright Infringement and the Fair Use Defense

ne of the main defenses against a copyright infringement claim is fair use. This means, essentially, that while a copyright was infringed, the user is allowed to do so. This may seem contrary to the exclusive rights given to an author of original creative works, however, fair use is not meant to entirely remove those rights, but to simply permit certain limited and "transformative" uses of copyrighted material, including commentary, criticism, news reporting, teaching, scholarship, and research.

To determine whether the fair use doctrine applies, courts will look to four factors, which must then be weighed to determine whether the rights of the copyright owner outweigh the public interest in permitting certain limited uses of protected works.

The first factor the courts look at is the purpose and character of the use. Under this factor, courts will consider whether the use is transformative. A transformative work has a new meaning, expression, or message. A work must be transformative, and not merely a copy of the original work, for there to be fair use. Rearrangement of parts of a protected work into a different order will likely not be enough to make the new work transformative. Courts will also consider whether the work was used for profit (which weighs against a finding of fair use), or for nonprofit educational purposes.

The second factor the courts will look at is the nature of the copyrighted work. If the work was unpublished, that would likely weigh against finding fair use because copyright owners should be able to determine the first publication. Works that are more creative also receive more protection than factual works.

Third, the courts will examine the amount and substantiality of the portion used in relation to the copyrighted work. Generally, the more of the copyright work that is used, the less likely the court will find fair use. However, even a small amount of work taken may not be fair use if it is the "heart" of the copyrighted work.

The fourth factor in determining whether the fair use doctrine applies is the effect of the use upon the potential market for or value of the copyrighted work. This includes the primary market for the copyrighted work as well as the current and potential market for derivative works. Not surprisingly, this factor can be complex. When J.K. Rowling, who penned the Harry Potter novels, sought to block the publishing of a fan-made lexicon because Rowling had intended to publish an encyclopedia herself, the court concluded the market for reference guides to Harry Potter works was not exclusively Rowling's to exploit or license, and publication of the Lexicon would not impair sales of the copyrighted work, the novels.

If you have questions regarding a potential copyright infringement or are involved in a copyright infringement case, contact the experienced Orange County copyright attorneys at Myers Berstein LLP today.

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