CHAPTER 9. Fair Use

Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials forpurposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist's work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work.

Unfortunately, if the copyright owner disagrees with your fair use interpretation, the dispute will have to be resolved by courts or arbitration. If it's not a fair use, then you are infringing upon the rights of the copyright owner and may be liable for damages.

The only guidance is provided by a set of fair use factors outlined in the copyright law. These factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one important factor is whether your use will deprive the copyright owner of income. Unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate.

This chapter explains the various rules behind the fair use principle. To help you get a feel for which uses courts consider to be fair uses and which ones they don't, we provide several examples of fair use lawsuits at the end of this chapter.

For educational fair use guidelines, see Chapter 7, which deals with academic permissions.

1. What Is Fair Use?
   1. Comment and Criticism
   2. Parody
2. Measuring Fair Use: The Four Factors
   1. The Transformative Factor: The Purpose and Character of Your Use
   2. The Nature of the Copyrighted Work
   3. The Amount and Substantiality of the Portion Taken
   4. The Effect of the Use Upon the Potential Market
   5. The "Fifth" Fair Use Factor: Are You Good or Bad?
3. Summaries of Fair Use Cases
   1. Cases Involving Text
   2. Artwork and Audiovisual Cases
   3. Internet Cases
   4. Music Cases
   5. Summaries of Parody Cases
4. Disagreements Over Fair Use: When Are You Likely to Get Sued?

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