What is “fair use” in intellectual property law?

Get Legal Help Today

 Secured with SHA-256 Encryption

Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

Full Bio →

Written by

UPDATED: Jul 16, 2021

Advertiser Disclosure

It’s all about you. We want to help you make the right legal decisions.

We strive to help you make confident insurance and legal decisions. Finding trusted and reliable insurance quotes and legal advice should be easy. This doesn’t influence our content. Our opinions are our own.

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

Fair Use is a defense to a claim of copyright infringement. This means that if you were to use a work and you thought your use was “fair use”, you would have to be sued for infringement and assert that defense. You or your attorney stating this belief would not prevent you from having to prove this defense in court as part of a copyright infringement claim.

Fair use is a complex concept which requires a balancing of factors as set forth by the Supreme Court (Luther R. Campbell v. Acuff Rose Music Inc., involving the parody of the Roy Orbison song “Pretty Woman” by the band 2 Live Crew). These factors include:

(1) the purpose and character of the use, including whether the use is of commercial or non-profit nature and whether the use is “transformative”;

(2) the nature of the copyrighted work (to what extent it merits copyright protection);

(3) the amount and substantiality of the portion used in relation to the work as a whole (how much and how important the part used is when compared to the original work); and

(4) the effect of the use upon the potential market for or value of the original work.

Whether or not something is “fair use” is rarely a clear yes or no question. It requires review of case law and the above factors by an experienced attorney who can assess the level of risk involved in the proposed use.

Get Legal Help Today

Find the right lawyer for your legal issue.

 Secured with SHA-256 Encryption