If you think you Need Permission to use a Copyrighted Work… Get it. Reply

Usually, using a copyrighted work requires permission (often in the form of a license.)  However, The Fair Use Doctrine (that is part of US Copyright law) allows copyrighted works to be used FREELY without requisite permission, in some instances.   Be forewarned… that what qualifies as a ‘fair use’ is more limited than you might think.   Here are a few examples:

  • Using a copyrighted photograph in the national broadcast of a criminal trial………   – IS FAIR USE
  • Publishing plot summaries for a popular science fiction television series………         – NOT FAIR USE
  • A Michael Moore movie poster that copies a “Men in Black” movie poster………..     – NOT FAIR USE
  • Using 300 words out of a former president’s biography  – NOT FAIR USE
  • Incidental inclusion of two paintings in the home of a movie character……………..     – IS FAIR USE

Determining what qualifies as a fair use is a gray area.  Courts evaluate fair use on a case by case basis.  Their analysis involves balancing several factors:  1) the purpose and character of the use, 2) the nature of the work, 3) the amount and substantiality of the portion used, and 4) the effect of the use on the potential market and value of the copyrighted work.   [These factors are out listed in Section 107 of the US Copyright Law.]

Hint: if you think that you might need permission to use a copyrighted work… you probably do.

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