Copyrighted Works And Fair Use

Last updated on: May 24, 2022

Most businesses often have to use creative material from other people or businesses for advertising, presentations, and other uses related to their business.  Using the entirety of a person’s original creative material could land a business in some legal trouble if it is done without permission from the creator or the person holding the material’s copyright.  However, permission from a copyright holder is not required if only a part of the creative material is used, and the use can be classified as fair use.

Fair use is a legal term that describes a use of a copyrighted work for certain purposes outlined in the Copyright Act.  Examples provided as being fair use of copyrighted work include:

  • Criticism;
  • Comment;
  • News reporting;
  • Teaching;
  • Scholarship;
  • Research; and
  • Parody.

Using a copyrighted work without permission is known as copyright infringement.  Fair use is a defense to a claim of infringement, and a court makes the determination if the use of the copyrighted work was truly fair use or went beyond it.  For its analysis, a court looks to the following factors and arrives at a determination by balancing them.

  • The purpose and character of the use – whether it is used for commercial or nonprofit purposes. The use of a copyrighted work for primarily commercial purposes is more likely not to found fair.  In terms of character, if the work is transformative, that is, adds something new to the copyrighted work instead of just copying it, the use of the copyrighted work is likely to be fair.
  • The nature of the copyrighted work – if the copyrighted work was fictional as opposed to factual, using it is less likely to be considered fair use, especially if it is an unpublished fictional work. Remember, copyright attaches when a work is created, no registration is required for copyright protection to exist.  Therefore, even unpublished works can be protected.
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole – looking at how much of the copyrighted material was used, and how important it was to the copyrighted work as a whole.
  • Effect of the use upon the potential market for or value of the copyrighted work.

If the use of a copyrighted work is determined not to be fair, a business or person accused of copyright infringement can be ordered to pay damages for its unpermitted use of the copyrighted work.  Damages can get expensive depending on how much the copyrighted work was used.  Ultimately, unless using the copyrighted work is central to the message the business needs to communicate, it is better to use its own original work to avoid legal issues.

Contact Us For Legal Assistance

Before using copyrighted work for your business needs, you should consult an attorney with experience dealing with copyright issues.  Consultation before use could save you money and time down the line.  Additionally, if you are a small business seeking to protect your company’s valuable intellectual property through copyright, trademark or trade secrets, contact an experienced business attorney in North Miami, at the Charlip Law Group, L.C. for a consultation.

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