Is Your Use Fair?
(photo: Teresa Earnest Photography of fabrics in steve mckenzie’s store)
In previous articles, I’ve discussed a lot about the importance of protecting your creative works, how to protect your creative works, and even when to protect your creative works. Still, a question that comes up frequently is, “Can I use someone’s work legitimately? If so, when is that possible?” I know, these are very sticky questions, so let’s proceed with extreme caution!
As we’ve talked about the Copyright Act grants certain exclusive rights to the copyright owner, that person who has created an original work and fixed it in a tangible expression. Although these rights are, indeed, exclusive to the copyright owner, that does not mean there aren’t a few limitations. One of those limitations is what is known as fair use.
So what exactly is fair use?
The doctrine of fair use has developed over time as courts have attempted to balance the copyright owner’s rights with the public’s right in allowing it access to certain material. The essence of this long established doctrine is that not all copying should be prohibited. Said another way, some copying is okay, and in fact, good. Typically, fair use is seen in situations of critique, news reporting, teaching, and research. Now the doctrine is set out in the Copyright Act that spells out the factors that a judge will evaluate when determining whether one has copied within the bounds of fair use or whether they have infringed. The four factors to be considered are the following:
- the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Traditionally, activities that have received fair use protection from claims of copyright infringement are using small excerpts from a written passage used in a review or critique for purposes of comment or illustration; a parody that incorporates some of the original work; quotes from a speech, limited copyright made for academic purposes by students.
So you may be wondering, I do not see how this applies to creatives. And you would be, in part, right. The reason I bring this discussion up is to highlight the fact that there are very few instances where it is okay to copy another’s work. So using another’s design as is or using it and then tweaking it unless it falls into one of these situations or you have obtained a license–which is another article for another day–is most likely going to cause you and the original copyright owner some heartache.
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