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Using Copyrighted Material Under the “Fair Use” Rule

A copyright gives the original creator of a work the right to profit from the work for a set period of time. How long a copyright lasts depends on several factors including the type of work, whether the work has been published, and if the creator is an individual or some other entity, like a corporation. While copyright normally prevents the reproduction or use of a work there is a limited “fair use” exception that allows people to use copyrighted works under limited circumstances as defined in 17 U.S.C. § 107. The reason for this exception is to allow public dissemination of copyrighted material when it would be of a benefit to society to have the information publicly available. It is important for business owners to understand when they can fairly use other’s copyrighted materials and when others can use materials copyrighted by the business or individual.

The fair use rule was developed as an exception to allow the public to use copyrighted materials for certain purposes. Our judicial system has determined that sometimes public dissemination of original works outweighs the rights of the original creator. Determining whether a use merits exception under the fair use rule requires weighing the factors outlined in 17 U.S.C. § 107. Some of these factors include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education 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; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

What constitutes “fair use” versus infringement of a copyright is rarely clear cut and

well defined. Just because a use is commercial does not automatically exclude it from characterization as fair use. Also, just because a use would be beneficial for some does not automatically make it acceptable under the fair use rule. However, there are some uses that are generally considered fair uses of copyrighted materials. These include criticism and comment on an original work, news reporting, use in scholarly work or for teaching, and parody of the original work.

Help with Using Copyrighted Materials

Determining whether the use of an original work is allowed under the fair use rule is often complex and requires the advice of a competent attorney to analyze the particular situation. The best thing to do when faced with questions regarding fair use of copyrighted materials is to contact your local Burlington County business attorney.

Your local attorney can assist in researching similar fair use situations and recommending a proper course of action. It is of paramount importance to protect your business from liability for copyright infringement. Lawsuits as a result of copyright infringement can cost your business a great deal of money, even if you are not found at fault. The best approach is to be cautious and consult with your attorney.