The world of copyright law is a tricky one as we're sure some of our California readers already know. This is especially true when the fair use doctrine is applied. When fair use comes into play, as you may already know, situations can get complicated quickly. Difficult legal questions are often raised too, such as the one we pose in today's post title.
To answer the question we pose above, let's first give you a hypothetical scenario from which this question may arise:
Imagine for a moment that you are a business owner who makes widgets. To promote your product, you have pictures of your widgets online. You notice, however, that the images you snapped of your widgets are also appearing on someone else's site. They did not ask for your permission to use the pictures, which raises the question about the legality of their use.
Even though you may not have realized it, when you took the picture of your widgets, a copyright was immediately attached to the image. This means that the image is expressly your property and would therefore require permission to reuse by another person or business.
Now, we know what you're thinking, "this should be grounds for infringement litigation!" But hold your anger because the situation might be more complex than you think if fair use is at play.
Though it's true that using someone else's copyrighted work as your own is infringement, U.S. copyright law does have some limitations such as those found in title 17 of the U.S. Code. One such limitation is fair use, which allows another party to use a copyrighted work without fear of legal recourse provided the use of the work meets the four-pronged test of the fair use doctrine. Under section 107 of the Copyright Act, there are a variety of purposes for which copying may be fair. These include criticism, comment, news reporting, teaching, scholarship and research. Section 107 also lists four factors to be considering in determining whether reproduction is fair:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Using the example above with the widget pictures, the test would consider how the pictures were used and whether it was done so for commercial use or nonprofit educational purposes. If the pictures were used on a review site or for educational purposes, the use of the images falls under fair use and may not lead to litigation.
As you can see, fair use greatly complicates copyright disputes, meaning legal representation may be necessary to come to a resolution.
Sources: The U.S. Copyright Office, "Fair Use," Accessed Dec. 5, 2014
The U.S. Copyright Office, "Copyright Basics," Accessed Dec. 5, 2014