I am frequently asked what protection “Fair Use” provides under Federal Copyright law. But Fair Use is not a protection or license to use the work of another, it is merely a defense to copyright infringement.
What are the Standards for Fair Use?
In general, infringement can be defended by showing that proper credits were given to the author of the work and that the portions reproduced were for a limited purpose not in direct competition. The problem with “Fair Use” is that it is not a bright line test; meaning a judge or jury will decide what is or is not fair.
The following factors that would be considered:
- The effect on the value or market original work;
- The purpose and character of original work;
- The nature of the copyrighted work and whether it is deserving of protection; and
- The amount of the copyrighted work used as it relates to the whole the infringing work.
There are more favorable fair use purposes such as criticism, comment, scholarship, research, journalism, education, or has a high degree of transformation from the original work.
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Is Parody a defense to Copyright infringement?
A subset of Fair Use is Parody. When evaluating the Parody, it is important to consider:
- Whether the infringement displaces the original and
- Whether there is a transformative quality that may allude to the original but carries sufficient artistic originality as to separate the two works from each other.
For Parody, artistic originality would include critique, sarcasm, or taunts. The degree of originality will be instrumental in a successful defense based on Parody.
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