Sacramento Intellectual Property Law Blog

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California residents who have copyrighted work may think it has protection against all other use that the owner does not give permission for. However, copyright laws allow others to use copyrighted material in certain situations, and this is known as fair use.

According to the U.S. Copyright Office, the law allows for some unlicensed use of certain copyright works in the interest of freedom of expression. Some examples of how someone else may use it include for research, reporting of the news, teaching and criticism. To help determine if it is fair use, a court will often consider four factors.

One factor is the purpose of the use, and courts typically lean towards fair use in nonprofit educational circumstances. This is especially true if the work has a transformative use, such as using a different character or furthering its purpose. Because one of the main purposes of a copyright is to encourage creativity, there is more support for fair use of factual work such as a news item or technical article as opposed to a song or work of fiction.   

Maricopa Community College discusses another fair use factor, and that is how the use affects the work’s market value. The court will be less likely to approve fair use if it will greatly reduce the number of works sold in the future.

The amount of copyright work one uses in an unlicensed way is also a factor. If it is small in relation to the entire work, the court may be more willing to allow it.

There is no definitive outline for approving fair use. Courts typically weigh multiple factors and specific contexts to come to a decision.

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