Copyright Fair Use Doctrine

The Fair Use doctrine allows some use of copyrighted materials without the copyright owner’s permission. The public policy for this exception is to help fulfill the creativity that copyright law intends to promote. “Fair use,” appears in Section 107 of the 1976 Copyright Act.

Common uses considered to be “fair” are use of copyrighted work for news reporting, teaching, scholarship, research; or social, artistic or intellectual criticism and comment.

The fairness inquiry begins with whether a copied work displaces or eclipses the original (unfair), or whether it is transformative, meaning whether the copied work adds something new, was created for a different purpose, has different character, alters the original’s expression meaning or message.

What is fair depends on the facts and circumstance. Generally, courts consider the purpose and character of the use; nature of the copyrighted work; substantiality of the portion of the copyrighted work used; and impact on on the market value of the copyrighted work. If a work was copied to have an impact on the sales of the original work, or for commercial and advertising purposes, the use of the work is likely not fair.

Generally, if less material is taken from a work the use is more likely to be fair. If a large portion of the original is essentially appropriated, the use is likely not fair.

Boiled down, fair use requires common sense. Whether a use without permission is “fair” is inexact like so much IP law.

The copyright and trademark lawyers at Lubin Austermuehle have over thirty-years of experience defending and prosecuting intellectual property claims for large and mid-size corporations and businesses. We are knowledgeable regarding the changes and complexities of copyright and trademark law. We are committed to fighting for our clients' property rights or defending them against baseless infringement claims at both the trial and appellate court levels. We have successfully defended large corporations in multi-million-dollar copyright or trademark infringement suits and regularly prosecute complex copyright infringement cases for computer software having achieved large six and seven figure settlements for our clients. Conveniently located in Chicago and Elmhurst, Illinois, we have successfully litigated intellectual property, trademark and copyright cases for clients all over the Chicago area. To schedule a consultation with one of our skilled attorneys, you can contact us online or give us a call at 630-333-0333.