Fair Use FAQs

By: Donna Ray Berkelhammer. This was posted Monday, January 30th, 2012

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The fair use doctrine hasn’t been this sexy since Biz Markie sampled Alone Again (Naturally).

Fair use is news again because Mitt Romney’s latest campaign ad features a news clip of Tom Brokaw reporting in 1977  that the House found Newt Gingrich guilty of ethics violations.  The campaign contends this is fair use, Brokaw is concerned that he appears to be endorsing Romney and NBC Nightly News claims this is copyright infringement.

What is fair use and how do you take advantage of it?

Generally speaking, you can use or copy a portion of someone else’s copyrighted work for purposes of criticism, comment, news reporting, teaching, scholarship, and research. In reality, however, it is often difficult to distinguish  fair use from infringement. Fair use is often used in connection with parody, criticism or commentary.

Section 107 of the Copyright Act sets out four factors to be considered in determining whether or not a particular use is fair:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.

There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

As a business, before you use another’s work, ask the author’s permission or seek intellectual property counsel to determine if your potential use is fair or infringing.

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