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What constitutes fair use of copyrighted material?

If you hold a copyright on a book, article, painting, musical composition, software program, etc. that you created in California, you own this creation. It is your intellectual property and others cannot copy, use or sell it without your permission. However, others have the right to fair use of your property without your permission.

As Baylor University explains, fair use means that others can use limited amounts of, or limited excerpts from, your copyrighted material without your permission under very limited circumstances. For instance, all of the following are examples of fair usage:

  • News reporting
  • Criticism
  • Parody
  • Research
  • Scholarship
  • Teaching

Four factors

Generally, the following factors determine whether or not usage by others is fair usage:

  1. Purpose: Why did the person use your work? Was it for commercial purposes or was it for educational or nonprofit purposes?
  2. Nature: What is the nature of your copyrighted work? Did you publish it yourself?
  3. Amount: How much of your copyrighted material did the other person use? Was it a very small amount in relation to the entirety of your work?
  4. Effect: Did the person’s use of your copyrighted material have a negative impact on its potential market? Did it limit your ability to market and sell your copyrighted work yourself?

The answers to these questions can go a long way in determining whether or not the person’s use of your copyrighted material was in fact fair usage of it. The answers also can help you determine if you have a valid copyright infringement lawsuit against the person.

Attribution

If your copyrighted material is in written form, one way in which a defendant likely can defeat your copyright infringement action is by showing that (s)he put quotation marks around the part (s)he used and listed your book, article, website, etc. as the source.

If your copyrighted material is a painting or other visual arts rendition, a defendant likewise probably can defeat your copyright infringement action by showing that (s)he attributed the copy she made of it to you and/or to your website where you displayed it.

Self-plagiarism

Bear in mind that if you created “your” intellectual property as part of your work as an employee or independent contractor, it is not really yours and you do not hold the copyright on it. Similarly, if you wrote an article that a magazine or journal published, you likely had to transfer all copyright rights to the publication. In such situations, your own subsequent use of the material must be fair usage, even though you were the original creator.

This is general information only and not intended to provide legal advice.

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