The fair use doctrine is key in a number of intellectual property (IP) disputes – typically those involving some type of creative work like music, designs, art and literature. Basically, it says that a person, business or organization may use part of a work that has been copyrighted by someone else without obtaining their permission. If a work falls under the fair use doctrine, the user can’t be considered guilty of copyright infringement.
The use of portions of others’ copyrighted work is typically considered “fair” when it’s used in reporting, criticism and parody or when copies of the material are made for educational purposes.
The four-factor test
Determining what constitutes fair use, however, is often not a black-and-white issue. If a case goes to court, a “four-factor test” as described under copyright law is used to determine whether a use of the material is fair.
These factors center on both the nature of the copyrighted work (for example, whether it’s fact or fiction) and the nature of the new work. Was the new work very similar to the original or was the original work “transformed” to make a very different work?
The court will also look at how much of the original material was used in the new work and how much having this new work will affect the potential market for the original. If the original creator is going to lose money because of this new work, they’re more likely to have a successful outcome in their case.
The Andy Warhol/Prince case
A case involving fair use is going to be heard by the U.S. Supreme Court. It involves the late artist Andy Warhol’s works in which he painted over a photo of the singer Prince. That photo was copyrighted by the photographer, who claims that was copyright infringement.
The Andy Warhol Foundation for Visual Arts is arguing that what he did with the photo – creating paintings in his own unique style — was “transformative.” When the court rules on the case, it could potentially affect the outcome of other cases.
Whichever side of a copyright infringement case you’re on, it’s crucial to understand the fair use doctrine and to have experienced legal guidance to protect your rights.