Many of our clients have the dubious honor of having received a settlement offer from a law firm claiming to represent the author of photographs or other copyrightable content posted online.  It can be very disconcerting to receive these letters especially for clients who do not have up-to-date records regarding their organization's copyright compliance over time.  There are a variety of approaches you may take to defending yourself against a claim of copyright infringement, but the one we'll focus on here is fair use.

In the United States, fair use is a legal doctrine under Section 107 of the Copyright Act that allows for the limited use of copyrighted material without the permission of the copyright owner. Fair use is not an absolute right but rather a set of guidelines and principles that are considered on a case-by-case basis. It is intended to balance the rights of copyright owners with the public interest in allowing the use of copyrighted works for purposes such as criticism, commentary, news reporting, education, and research.

The four factors that are typically considered in determining whether a particular use qualifies as fair use are:

1.      Purpose and Character of the Use: Is the use transformative, adding something new and different to the original work? Non-profit and educational uses are more likely to be considered fair use.

2.      Nature of the Copyrighted Work: Is the work primarily factual or creative? Using factual or non-fiction material is more likely to be considered fair use than using highly creative and original content.

3.      Amount and Substantiality of the Use: How much of the original work is being used and is the most important or central part of the original work is being used? Using a small portion of the work for a specific purpose (especially if differentiable from the original purpose under 1.) is more likely to be considered fair use than using a substantial portion for the same purpose.

4.      Effect on the Market: Does the use harm the potential market for the original work? If the use of the copyrighted material is likely to replace the market for the original work, it's less likely to be considered fair use.  However, as opposed to simply looking at the particular actions of the alleged infringer, this factor generally requires consideration of whether widespread conduct of the sort allegedly would result in a substantially adverse impact on the potential market for the original.

It's important to note that fair use is a complex and often subjective legal doctrine, and there are no strict rules for determining what qualifies as fair use. Courts consider each case individually, and the outcome can vary depending on the specific circumstances. 

Additionally, fair use is primarily a U.S. legal doctrine. Other countries may have their own exceptions and limitations to copyright law, which can differ significantly from fair use. If you're dealing with copyright issues outside of the United States, it's essential to understand the specific copyright laws and exceptions in that jurisdiction.

Legal Disclaimer- the information provided herein is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney / client relationship. Although effort has been made to ensure that the answers are correct, Resolute Legal PLLC and the associated author(s) cannot and do not offer any warranty, whether express or implied, that the answers contained are accurate statements of law. This document is provided for informational purposes only. You should not not act upon any information without first seeking advice from a qualified attorney outside the context of this article.

About the Author(s)

Zac Kline

Zac is a managing partner at Resolute Legal. He focuses his practice in the areas of corporate governance and intellectual property law.

Learn More