Lesson 4

• Fair use of a copyrighted work is not an infringement of copyright
• Fair use allows users to use copyrighted material without permission under certain circumstances
• Users do not need to notify or seek permission from the copyright holder if the use is fair
• 4 factors to consider in determining fair use:

  • Purpose and character of the use
  • Nature of the copyrighted work
  • Amount and substantiality of the portion used
  • Effect of the use upon the potential market for or value of the copyrighted work
• The fact that a work is unpublished does not bar a finding of fair use if all factors are considered
• Each of the 4 factors has subfactors that influence how the factor weighs in favor of or against fair use
• First factor: Purpose and character of the use

  • Commercial purpose weighs against fair use
  • Transformative purpose, educational purpose, and illustrative purposes weigh in favor of fair use
• Second factor: Nature of the copyrighted work

  • Using a work that is unpublished weighs against fair use
  • Using a creative work weighs against fair use
  • Using a factual work is more likely to be fair
• Third factor: Amount and substantiality

  • Using the "heart of the work" weighs against fair use
  • Using more of the work makes fair use less likely
  • If the amount used is necessary for a transformative purpose, this factor is neutralized
• Fourth factor: Effect on the market

  • Use that decreases demand for the original work weighs against fair use
  • Use that the rightsholder currently licenses weighs against fair use
  • Use that the rightsholder is unwilling to license weighs in favor of fair use
• Fair use allows for criticism and educational purposes
• Fair use vs. Copyright:

  • Fair use is a limitation and exception to the exclusive right granted by copyright law
  • Infringement is the use of works under copyright without permission
  • Fair use furthers the purpose of copyright, while infringement does not
  • Fair use outweighs the public interest in dissemination, while infringement does not
  • Fair use does not harm the market value of the original work, while infringement does