Fair Use: When it’s OK to Copy a Copyrighted Work

fair useAll sorts of entertainment – music, movies, books and television – are copyrighted to ensure that they are safe from people attempting to profit off of ideas that are not their own. However, sometimes it is okay to “rip-off” someone else’s work under a legal concept called fair use.

What is Fair Use?

Basically, fair use is the copying of copyrighted material in a way that is transformative. This may mean that the new work copies the prior creation in a way that comments on, criticizes or parodies it. The idea is, that typical fair use of a prior work falls under the Constitutional right to free speech, since these productions transform the original work.

The fair use categories

There are two generally cited categories of fair use, each of which are defined by the ways in which they transform the original.

  1. Comment or criticism: The idea behind this category is that the original work is being commented upon or criticized for the benefit of the public. For example, a review of a song that quotes the lyrics, or of a book that makes use of a paragraph. Though lines are taken straight from the original work, this is done so in a way that offers new information to the public, thus transforming the creation being commented upon or critiqued.
  2. Parody: A parody comments on the original in a completely separate way, by copying it in a way that taunts or makes a caricature of it it in a comedic fashion. Parody is different from other sorts of fair use in that it’s understood that it requires taking plenty of content from the original in order to work.

Important factors in fair use

To determine whether a work falls under the fair use category, a number of factors should be considered. These are:

  1. What is the purpose of the use? Is it for a commercial or a non profit educational purpose?
  2. What is the nature of the copyrighted work?
  3. What is the amount of the copyrighted work used in the newer creation?
  4. What is the effect that the use will have on the market for and value of the copyrighted work?

Without fair use, many things such as new reporting, reviews of creative works and entertainment such as movies and music would be completely different. However, transforming a copyrighted work in a legal way can be a complicated issue. If you’re unsure of whether your work falls under either fair use category, speak with an attorney with knowledge of entertainment law to learn more.

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Anthony R. Caruso is a business transactional attorney in New York and New Jersey with experience in structuring, negotiation and completion of legal deals involving business, entrepreneurs, athletes and performers.

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