Copyright law is designed to provide economic incentives to content creators: if you write and publish a book, you will be able to make money from it, and no one else can claim your book as theirs. However, this comes up against the First Amendment right to free speech, as it prevents certain material from being used in speech and expression without explicit permission. How can you create something new if you're prevented from building on what has come before? Judge Joseph Story noted in 1845:
“In truth, in literature, in science and in art, there are, and can be, few, if any things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science, and art, borrows, and must necessarily borrow, and use much which was well known and used before.” (Emerson v. Davies, 8 F.Cas. 615, 619 (No. 4,436) (CCD Mass. 1845), quoted in Hudson Jr., 2004)
The fair use exemption exists for just this reason.
Hudson Jr., D.L. (2004, August 5). Copyright and the First Amendment. First Amendment Center. Retrieved from http://www.firstamendmentcenter.org/copyright-the-first-amendment/.
"Fair use" refers to the specific uses of copyrighted material that are allowed under copyright protection without requiring permission from the copyright owner (17 U.S.C. §107). These uses include criticism, parody, commentary, journalism, education and research.
The ability to claim use of something under "fair use" relies on the following factors:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for, or value of, the copyrighted work.
The Fair Use Evaluator provides a guide to these steps, and creates a (non-legally binding) evaluation form at the end. Fair use tends to be decided by the courts on a case-by-case basis, so there's no single formula that will decide if a use can be considered fair or not.
This short by Prof. Eric Faden of Bucknell University pokes fun at the Walt Disney Corp's stringent defense of its intellectual property by using, through the doctrine of Fair Use, short clips of Disney films for the educational purpose of explaining Fair Use.
The video posted below has been edited by Jason Burton to include closed captions.
This work is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 License
The information presented here is for informational purposes only and should not be considered legal advice.