Monday, November 4, 2013

When is it OK to Use Copyrighted Materials Without Obtaining Permission

By:  Tifanie Jodeh
Copyright is protective of works such as photographs, music compositions, films, sculptures, news articles and paintings.  These forms of creative, expressive media are protected as any “original work of authorship fixed in any tangible medium of expression.” (Under the Copyright Act)

Many content creators are confused about the fair use doctrine and whether they need permission to borrow from the owners of copyrighted works. “Fair use” allows conditions under which content creators can use material that is copyrighted by someone else without paying royalties or needing to obtain a license.  It gives the public a limited right to draw upon copyrighted works to produce separate works of authorship. Such examples of uses include news, fair comment and criticism, parody, reporting, teaching, scholarship and research. Filmmakers, artists and writers benefit from the fact that the copyright law does not exactly specify how to apply fair use.  Creative needs are considered and whether the use is “fair” according to a “rule of reason”. 
Courts employ a four part test (set out in the Copyright Act) and ask two key questions:
1.  Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than the original, or did it just repeat the work for the same intent and value as the original. 
2.  Was the amount and nature of material taken appropriate in light of the nature of the copyrighted work and of the use. 

If the answer to both questions is in the affirmative, a court is likely to find a fair use. 

For example, if a reporter quotes a paragraph from an article you wrote online and that reporter compares your opinion with that of other commentators, this is likely permitted by the fair use doctrine without the need to obtain your permission.

Be sure to keep in mind that fair use is a very fact-sensitive defense to a copyright claim.  It is sometimes difficult for producers, writers and content creators to determine beforehand whether a particular use is in fact a fair use. For this reason, it is a good idea to seek out a license before engaging in a use that might be a "maybe" fair use.

For more information, visit the copyright office at http://www.copyright.gov/

COPYRIGHT & DISCLAIMER
Tifanie Jodeh is Partner at Entertainment Law Partners dedicated to corporate, business and entertainment affairs.  You may contact her at Asst@entlawpartners.com.
Tifanie Jodeh grants column recipients permission to copy and distribute this column and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.

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