The underlying rationale of this rule is that the public reaps benefits from your review, which is enhanced by including some of the copyrighted material. Additional examples of commentary or criticism are provided in the examples of fair use cases. A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Judges understand that, by its nature, parody demands some taking from the original work being parodied.
For example, under 17 U. But these exclusive rights are not absolute. The doctrine of fair use creates important exceptions. Writers, academics, and journalists frequently need to borrow the words of others. Sooner or later, almost all writers quote or closely paraphrase material that someone else has written.
For example:. Assuming the material quoted in these examples is protected by copyright, do Andy, Phil, Regina, Sylvia, or Donnie need permission from the author or other copyright owner to use it?
It may surprise you to learn that the answer is "not necessarily. Under the "fair use" defense , another author may make limited use of the original author's work without asking permission.
Pursuant to 17 U. As a matter of policy, fair use is based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. The fair use privilege is perhaps the most significant limitation on a copyright owner's exclusive rights.
If you write or publish, you need a basic understanding of what does and does not constitute fair use. Subject to some general limitations discussed later in this article, the following types of uses are usually deemed fair uses:.
There are several factors that a court will consider when determining whether an instance of infringement qualifies as fair use. Non-commercial use weighs heavily in favor of finding that the infringement is fair use.
Violations often occur when the use is motivated primarily by a desire for commercial gain. The fact that a work is published primarily for private commercial gain weighs against a finding of fair use. For example, using the Bob Dylan line "You don't need a weatherman to know which way the wind blows" in a poem published in a small literary journal would probably be a fair use; using the same line in an advertisement for raincoats probably would not be.
Similarly, a use that benefits the public or that lends to education also weighs heavily in favor of a finding of fair use. For example, in its advertising a vacuum cleaner manufacturer was permitted to quote from a Consumer Reports article comparing vacuum cleaners. The ad significantly increased the number of people exposed to the Consumers Reports' evaluations and thereby disseminated helpful consumer information.
The same rationale probably applies to the widespread practice of quoting from favorable reviews in advertisements for books, films, and plays. There are five basic considerations to keep in mind when deciding whether or not a particular use of an author's work is a fair use. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include Unfortunately, there is no clear formula that you can use to determine the boundaries of fair use.
Instead, a court will weigh these four factors holistically in order to determine whether the use in question is a fair use. In order for you to assess whether your use of another's copyrighted work will be permitted, you will need an understanding of why fair use applies, and how courts interpret each part of the test. If you use another's copyrighted work for the purpose of criticism, news reporting, or commentary, this use will weigh in favor of fair use.
See Campbell v. Acuff-Rose Music , U. Online Policy Group v. Diebold, Inc. When you put copyrighted material to new use, this furthers the goal of copyright to "promote the progress of science and useful arts. In evaluating the purpose and character of your use, a court will look to whether the new work you've created is "transformative" and adds a new meaning or message.
To be transformative, a use must add to the original "with a further purpose or different character, altering the first with new expression, meaning, or message. Although transformative use is not absolutely necessary, the more transformative your use is, the less you will have to show on the remaining three factors. A common misconception is that any for-profit use of someone else's work is not fair use and that any not-for-profit use is fair.
In actuality, some for-profit uses are fair and some not-for-profit uses are not; the result depends on the circumstances. Courts originally presumed that if your use was commercial it was an unfair exploitation. They later abandoned that assumption because many of the possible fair uses of a work listed in section 's preamble , such as uses for purposes of news reporting, are conducted for profit.
Although courts still consider the commercial nature of the use as part of their analysis, they will not brand a transformative use unfair simply because it makes a profit. If you merely reprint or repost a copyrighted work without anything more, however, it is less likely to qualify for protection under this prong. If you include additional text, audio, or video that comments or expands on the original material, this will enhance your claim of fair use.
In addition, if you use the original work in order to create a parody this may qualify as fair use so long as the thrust of the parody is directed toward the original work or its creator. Moreover, if the original work or your use of it has news value, this can also increase the likelihood that your use is a fair use. Although there is no particular legal doctrine specifying how this is weighed, several court opinions have cited the newsworthiness of the work in question when finding in favor of fair use.
See, e. In examining this factor, a court will look to whether the material you have used is factual or creative, and whether it is published or unpublished. Although non-fiction works such as biographies and news articles are protected by copyright law, their factual nature means that one may rely more heavily on these items and still enjoy the protections of fair use. Safe to say, this is an evolving area of the law that has made the already murky doctrine of fair use even murkier.
Of the four fair use factors, this factor is the least complex and thus also the easiest to evaluate. The more creative a copyrighted work is the more likely there will be a finding of fair use. Thus, when the copyright work being used is a work of fiction this factor favors the copyright owner, but when the work is a factual work it favors a fair use finding. The publication status of the work also plays a role with this factor.
When the copyrighted work is unpublished the use is less likely to be a fair use. This factor considers the amount of the copyrighted work that was used in relation to the copyrighted work as a whole. Where the amount used is very small in relation to the copyrighted work, this factor will favor a finding of fair use.
On the other hand, where the amount used is not insignificant in relation to the copyrighted work, this factor will favor the copyright owner.
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