D. Disagreements Over Fair Use: When Are You Likely to Get Sued?

The difficulty in claiming fair use is that there is no predictable way to guarantee that your use will actually qualify as a fair use. You may believe that your use qualifies--but, if the copyright owner disagrees, you may have to resolve the dispute in a courtroom. Even if you ultimately persuade the court that your use was in fact a fair use, the expense and time involved in litigation may well outweigh any benefit of using the material in the first place.

EXAMPLE: Sam quotes from four pages of a biography in his documentary film about poet Allen Ginsberg. He believes that his use qualifies as a fair use and he does not seek permission from Barbi, the author of the biography. Barbi does not think that Sam's copying is a fair use and wants to be paid for having her work used in his film. She sues Sam for copyright infringement, and Sam is forced to hire a lawyer to defend him in the lawsuit. Even though the court ultimately rules that Sam's use was a fair use, Sam's lawyer fees exceed $20,000, which far exceeds any profits he earned from the film.

Because there is a sizable gray area in which fair use may or may not apply, there is never a guarantee that your use will qualify as a fair use. The fair use doctrine has been described as a murky concept in which it is often difficult to separate the lawful from the unlawful. Two types of situations are especially likely to cause legal problems:

• Your work causes the owner of the original work to lose money. For example, you borrow portions of a biology text for use in a competing biology text.
• The copyright owner is offended by your use. For example, you satirize the original work and your satire contains sexually explicit references or other offensive material.

Remember, these criteria do not determine whether you will prevail in a fair use lawsuit --they simply indicate whether you are likely to trigger a lawsuit. When you use someone 's work and deprive them of money or offend them, the chances of a lawsuit increase.

Just as there are situations that are more likely to cause lawsuits, there are some situations that may lower the risk:

• You use a very small excerpt, for example, one or two lines from a news report, of a factual work and your use is for purposes of commentary, criticism, scholarship, research or news reporting.
• You diligently tried to locate the copyright owner but were unsuccessful, and after analyzing the fair use factors, you became convinced that your use would qualify as a fair use.

If in doubt about your fair use assessment, consult with a copyright attorney.

Copyright © 2007 Nolo