From videos on the Internet to sound recordings to book excerpts, one individual's expression of information can often enhance another person's creative work; or, be used to educate and inform the public. As long as the copyright owner has given permission to use their work, there is absolutely nothing wrong with reproducing, or creating a derivative of the original. No laws are broken, no one has been violated, and a copyright infringement attorney does not have to step in to defend or persecute a possible infraction. When permission is not granted, on the other hand, the act of use is either considered fair use or copyright infringement, legal or illegal.
The Fair Use Doctrine Explained
The fair use doctrine was devised by the courts to allow copyrighted material to be shared with the public in certain circumstances. The basis for this provision is that information and expression are too valuable to be completely controlled by the decisions of the copyright owner. Although creative works are protected by federal law, and therefore encouraged and valued by the state, enough situations arose in the courts to necessitate the most widely used exception in copyright law - fair use.
What qualifies as fair use? There is no clear answer to this question, in fact, the fair use doctrine may have been designed to be flexible because of the almost endless possibilities of fair use and copyright infringement situations. Many authors of new work have to seek out the advice of a copyright infringement attorney because of the ambiguity. There is no maximum word count, or total number of music notes that can be legally taken from an original work. There are however a set of factors that are used to determine if an instance of copyright infringement can be considered fair use.
- What is the Intent of Use? – Is the new material used for commercial or non-commercial purposes? In most cases, if no profit is to be made, the use of a copyright owner's original material is considered fair use, especially if there is an intent to educate.
- What is the Original Work – Factual or Creative? - Scholarly works, documentary films, anything that is based more on fact than an individual's pure creation is more likely to be considered fair use rather than copyright infringement.
- How Much is Taken? – Although there are no exact determining figures, the percentage does matter when determining the rights of the copyright owner against the rights of the public to hear, see, or read the information.
- Will the Use Change the Market Value? – In cases where the new work could be considered a substitution for the original, the use is almost definitely copyright infringement as this would threaten the market or potential market of the copyrighted work.
Common examples of fair use are news reports, parodies, critiques or reviews, and anything educational. Use that doesn't fall into any of these categories is debatable and may require the consultation of a copyright infringement attorney.
What is Copyright Infringement?
If the use of a copyright owner's original material is not considered to be fair use, than it is probably copyright infringement. According to the United States Copyright Office, any material that is "reproduced, performed, publicly displayed, or made into a derivative work without permission" is an illegal violation of the rights of the copyright owner. Copyright infringement is what gets many individuals and companies into financial trouble, if not ruin. Fines for copyright infringement can range from thousands to millions of dollars, especially if the violator was aware of the infraction.
Copyright infringement gives the copyright owner the right to take legal action against anyone who has used their work illegally. As this is a very serious crime, it is worth taking the time and effort to seek permission from the copyright owner, or to at least consult with a copyright infringement attorney to find out if a reproduction, derivative, or even a small piece of someone's creation would be considered fair use or copyright infringement.
Sources:
United States Copyright Office
BNC101
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