Intellectual Property Law Knowledge Center

When Others Can Use Your Copyrighted Material For Free: Understanding ‘Fair Use’

October 22nd, 2015

By Bridget H. Labutta, Esq.

Most artists, including photographers, writers, musicians, and more, make a living by selling the artistic works they create. Copyright protection gives these artists the exclusive, legally enforceable right to the use of that material.

That control, however, is not absolute, and we receive many questions from artists who are concerned about possible infringement of their rights. Indeed, under limited circumstances, other parties can use significant portions of a copyrighted work without obtaining a license or permission from the copyright holder. It’s important for copyright holders to be aware of these “fair use” exceptions to copyright protection when considering how best to protect their valuable assets.

Under the fair use doctrine, anyone may use a copyrighted creative work without the copyright holder’s permission for the following purposes.

Criticism or commentary. Excerpts or clips of a copyrighted creative work are eligible for fair use if they are being used in a review or critique of that work. If you’ve ever enjoyed a review of a film or music album that used clips from the film or album in question, you’ve seen this aspect of fair use in action.

Documentaries – say, one that sought to explore the depiction of minorities in American cinema – reasonably could present clips of representative films to illustrate ideas or arguments. Producers often request permission to use the copyrighted works as a courtesy to the copyright holder, but they are not required to do so. Provided the excerpts were relatively brief and relevant to the commentary, the use of such film clips likely would be protected by the fair use exception.

Parody. The famous song parodist “Weird Al” Yankovic traditionally asks the artists behind the pop songs he wants to lampoon whether they consent to his zany sendups. As in our documentary example, however, this is merely a courtesy. Neither he nor anyone else wishing to lampoon a creative work requires the permission of that work’s copyright holder in order to do so.

When he (or anyone else) creates a parody of a copyrighted work, fair use provisions empower him to use the original work very extensively. Clips and excerpts are not sufficient to effectively imitate the original work, and U.S. copyright law has accommodated parody by allowing the borrowing of more of the original work than other derivative works that enjoy fair use protections.

Education. Though commentary and parody are common fair use exceptions, they are not the only ones. Teaching settings, scholarly research, and journalism also provide their practitioners with some room to use copyrighted works without a license.

Whether an unauthorized use of a copyrighted work constitutes infringement depends upon the specific facts of the individual case. If you have a question or concern about possible copyright infringement, the intellectual property attorneys of Panitch Schwarze Belisario & Nadel can help. Contact us at 888-291-5676.

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