Wednesday, November 30, 2011

Fair Use Defense to Copyright Infringement: What it is and what it isn't

As a copyright lawyer, I hear a lot of people say "as long as I don't copy more than 10% of something, it's fair use." Or sometimes you hear them say "as long as I change something, it's fair use." These people are destined for trouble.
The "fair use" defense to copyright infringement is actually pretty subjective and definitely not a bright-line test. What does it mean to be a fair use? No one can tell you exactly, at least not in the abstract. It all depends on the particular facts. What I can tell you, is there is no "10% rule."
The fair use defense is part of the copyright laws-Section 107 of the copyright laws to be exact. In short, whether a copy is a fair use basically turns on four things:
  1. Is the copy being sold?
  2. How "artistic" is the work?
  3. How much did you copy?
  4. Did you impact the original author's income?
This is a gross generalization of the four statutory factors that the Courts will always apply, but it's pretty close. So before you make a copy of someone else's work, ask yourself those four questions. I will tell you, the biggies are question 1 and question 4. Not surprisingly, the Court's get very testy when you mess with someone's money. If you are selling the copy to the same people who would be buying the author's work, forget about it. You're done. If you are giving away copies to people who would otherwise be buying the author's work, you're in trouble. If all you are doing is quoting a few passages in your blog of a news article you read, and you don't make any money off your blog, you're probably OK.
So really, fair use is very fact specific. But if you just think about it in terms of those 4 questions, you can probably figure it out for yourself.