Fair Use. The "fair use" doctrine in copyright law is unique to United States and Philippines, though a similar principle of fair dealing, exists in some common law jurisdictions.

The "fair use" doctrine in copyright law is unique to United States and Philippines, though a similar principle of fair dealing, exists in some common law jurisdictions.

The copyright principle of fair use allows the public to copy works without having to ask permission or pay licensing fees to copyright holders.

There is no single test to determine what constitutes "fair use"; therefore, every case should be treated uniquely as particular circumstances and interpretations of the law can be quite diverse. Court rulings have generally given more leeway to uses that are for academic purposes, especially if revenues are not part of the instructional artifact.

Fair use allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review.

Fair use provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test.

Fair use is based on free speech rights provided by the First Amendment to the United States Constitution.

United States trademark law also incorporates a "fair use" defense. While the names are the same, the doctrines are quite different.

Common misinterpretation and confusion regarding the scope of fair use doctrine:

Way back in 1841, Justice Story analyzed fair use in Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841), where he stated, "look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work." This codified in the Copyright Act of 1976 in § 107 as follows:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

It is possible to quote from a copyrighted work in order to criticize or comment upon it.

A teacher may print a few copies of a poem to illustrate a technique and will have no problem on all four of the above factors though amount and substantiality does matter.

A book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though he may sell his review commercially. But a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

In Suntrust v. Houghton Mifflin Co., 252 F. 3d 1165 (11th Cir. 2001), the United States Court of Appeals for the Eleventh Circuit against the owner of Margaret Mitchell's Gone with the Wind, vacated an injunction prohibiting the publisher of Alice Randall's The Wind Done Gone from distributing the book. The principle was that the creation and publication of a carefully-written parody novel in the United States counts as fair use. The court followed the previous United States Supreme Court decision in Campbell v. Acuff-Rose Music, Inc. which ruled that 2 Live Crew's unlicensed use of the bass line from Roy Orbison's song "Oh, Pretty Woman" constituted fair use under copyright law and extended that principle from songs to novels and is binding precedent in the Eleventh Circuit.

The Supreme Court of the United States ruled in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), that fair use is an affirmative defense to copyright infringement. This means that if the defendant's actions do not constitute an infringement of the plaintiff's rights (for example, because the plaintiff's work was not copyrighted, or the defendant's work did not borrow from it sufficiently), fair use does not even arise as an issue. However, it also means that, once the plaintiff has proven (or the defendant concedes) that the defendant has committed an infringing act, the defendant then bears the burden of proving in court that his copying should nonetheless be excused as a fair use of the plaintiff's work.

Because of this defendant's burden of proof, some copyright owners frequently make claims of infringement even where the fair use defense would ultimately succeed.

This is done by the copyright owners so that the user will refrain from the use rather than spending resources in his defense. This type of frivolous lawsuit is part of a much larger problem in First Amendment law.

Authors may seek a license even for uses that copyright law ostensibly permits without liability as paying a royalty fee may be much less expensive than having a copyright suit that threatens the publication of a completed work

'"The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioner's suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

The authors or the publishers of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use.

The fair use cases addressing parodies distinguish between parodies that use a work in order to ridicule or comment on the work itself, and satires that use a work to ridicule or comment on something else.

Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.

In Campbell v. Acuff-Rose Music, Inc. (1994), the Supreme Court recognized parody as a fair use, even when done for profit. Roy Orbison's publisher, Acuff-Rose Music Inc., had sued 2 Live Crew in 1989 for their use of Orbison's "Oh, Pretty Woman" in a mocking rap version with altered lyrics. The Supreme Court viewed 2 Live Crew's version as a ridiculing commentary on the earlier work, and ruled that when the parody was itself the product rather than used for mere advertising, commercial sale did not bar the defense.

The Campbell court also distinguished parodies from satire, which they described as a broader social critique not intrinsically tied to ridicule of a specific work, and so not deserving of the same use exceptions as parody because the satirist's ideas are capable of expression without the use of the other particular work.

In a more recent parody case, Suntrust v. Houghton Mifflin, a suit was brought unsuccessfully against the publication of The Wind Done Gone, which reused many of the characters and situations from Gone with the Wind, but told the events from the point of view of the slaves rather than the slaveholders. The Eleventh Circuit, applying Campbell, recognized that The Wind Done Gone was a protected parody, and vacated the district court's injunction against its publication.

Website inline linking and fair use

Kelly v. Arriba Soft Corporation, provides and develops the relationship between thumbnails, inline linking and fair use.

In the lower District Court case on a motion for summary judgment Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly's website in Arriba's image search engine. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation, who argued that it is clearly covered under fair use.

On appeal, the 9th Circuit Court of Appeals found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003.

Fair use and trademark law
The fair use defense in trademark law is based on similar principles as the doctrine under copyright, such as free speech, but with different exceptions. Fair use is consistent with the more limited protection granted to trademarks, generally specific only to the particular product market and geographic area of the trademark owner.The less distinctive or original the trademark, the less able the trademark owner will be to control how it is used.

Most trademarks are adopted from words or symbols already common to the culture, as Apple Computer is from apple, instead of being invented by the mark owner (such as Kodak). Courts have recognized that ownership in the mark cannot prevent others from using the word or symbol in these other senses, such as if the trademark is a descriptive word or common symbol such as a pine tree.

A trademark may be used by nonowners nominatively to refer to the actual trademarked product or its source but not in a way that would be likely to confuse consumers about the source of their product.

Copyright Clarity: How Fair Use Supports Digital Learning by Renee Hobbs (Paperback - Apr 7, 2010) Review “This book cuts right to the heart of uncertainties about how copyright and fair use apply in the classroom-confusions that block many valuable pedagogical interventions. Hobbs offers the information straight, addressing common misperceptions and laying out the current understandings of intellectual property law in clear, engaging prose.” (Henry Jenkins, Provost's Professor of Communication, Journalism, and Cinematic Art ) "This long-awaited book is exactly what has been needed to relieve educators’ anxieties about the legality of using copyrighted materials during instruction and presentations. In addition to answering questions about fair use practice in an easy-to-understand manner, Hobbs offers examples of how Internet and communications technologies support essential literacy and communication skills in 21st-century classrooms. This slender text is a must-read for every educator independently or as a professional development choice." (Diane Lapp, Distinguished Professor of Education ) Product Description This jargon-free guide clarifies principles for applying copyright law to 21st-century education, discusses what is permissible in the classroom, and explores the fair use of digital materials.

Harry Potter and the Order of the Court: The J.K. Rowling Copyright Case and the Question of Fair Use by Robert S. Want - Oct. 2008 - What is the meaning of intellectual property in a world of rapidly evolving media forms? How do owners protect their intellectual property? In sharing it, how do they preserve their rights? What constitutes fair Use of the fruits of someone else s genius? What allowances should be made to ensure the free flow of information to citizens and scholars?
The case was complicated by a variety of factors, including the fact that RDR alleged the Lexicon was a print version of The Harry Potter Lexicon website, one of the many sites on the internet that Potter fans can currently access for free. Then there was the fact that J. K. Rowling had encouraged such websites and in fact had been quoted positively in reference to this particular site.
In fact, Mr. Want's fascinating account of this complex litigation -- which brought literary fantasy, legal reality, and the contending interests of creative ownership and scholarly privilege into the courtroom -- focuses its attention on the central issue of "Fair Use."
The adventures of Harry Potter may be at an end, but the struggle to define the Fair Use fair doctrine as it applies to many kinds of intellectual property (music, literature, software, web pages, etc.) is likely to continue unabated as media forms continue evolve faster than the law can corral and police their use. Future cases will be decided one at a time, as courts review the Fair Use principles and case law already established, but also apply the subjective judgments and moral instincts that may be appropriate to a given case. Creators need to be able to protect the rights to what they create, but freedom of expression and free flow of information are also precious commodities. What is certain is that the conflicts between these two sets of interests will grow and evolve over time. Nevertheless, without some omnipotent wizard to wave a magic wand and create definitive and permanent rules for what constitutes Fair Use in a changing world, the courts and the rest of us will simply have to muggle through. --BookReview.com
Beyond the star presence of Ms. Rowling, the case is of general interest as it involves an important but little understood aspect of copyright law: the doctrine of "fair use." Fair use refers to situations where one is allowed to use material from a copyrighted work without seeking permission from the author, such as a book critic quoting from a novel or a music critic using a short clip of a song.
Fair use applies whether you write on paper or online. But the doctrine has taken on added importance in the Internet Age where almost all of us "publish" in one form or another, be it through creating websites, writing blogs or uploading content. And as authors or publishers, we often feel the need to quote, closely paraphrase, or otherwise use material others have created. This is where fair use comes in.
Harry Potter & the Order of the Court discusses fair use as it relates to the J.K. Rowling case and in terms of the broader application of the doctrine, offering many specific examples as to what likely does, and does not, constitute fair use.

Composition and Copyright: Perspectives on Teaching, Text-making, and Fair Use - by Steve Westbrook (Editor)
Product Description
Essential copyright resource for teachers and writers, particularly those involved in electronic or new media.
From the Back Cover
Drawing on connections between legal developments, new media technologies, and educational practice, Composition and Copyright examines how copyright law is currently influencing processes of teaching and writing within the university, particularly in the dynamic contexts of increasing digital literacy, new media, and Internet writing. Contributors explore the law's theoretical premises, applications to writing classrooms, and the larger effects of copyright law on culture and literacy. Central to the volume is the question of what may constitute "infringement" or "fair use," and how the very definitions of these terms may permit or prohibit specific text-making activities. The essays cover a range of subjects, from students' appropriations of Internet images to using blogs in the classroom to the efforts by universities to claim legal ownership of professors' teaching and research materials. As new technologies and legislation are overturning traditional notions of intellectual property, this volume offers ways to navigate the issues in terms of pedagogy, research, and creating new media texts within the current legal framework.

Limits to database protection: Fair use and scientific research [An article from: Research Policy] by A.K. Sanders - Product Description
Description: It is argued that there are compelling economic reasons to protect valuable assets that are prone to copying, but that there are equally compelling reasons to limit monopolistic claims and stimulate cross-licensing practices. Compulsory licensing may serve as a stimulus to the bargaining process with private parties and research institutions alike. Another important category of information is public sector information. The right of access to information may be enforced through the European Convention on Human Rights. It not only guarantees the freedom of speech, it also recognises the freedom to receive information.

Fair Use, Free Use, And Use by Permission: How to Handle Copyrights in All Media
Book by Lee Wilson
Thank heavens there’s Fair Use, Free Use and Use by Permission, the one-volume reference that is sure to save the sanity of thousands of grateful readers. Writers, photographers, illustrators, designers, teachers, researchers—anyone involved with intellectual property needs this practical, straightforward guide to copyright law. Find out what constitutes fair use, how to get permissions, and how to protect creative work, plus learn about copyright infringement, public domain, and much more.

Downloading Copyrighted Stuff From The Internet: Stealing Or Fair Use? (Issues in Focus Today) Book by Sherri Mabry Gordon
Grade 7 Up–This title ventures into murky territory in order to present two sides of the ongoing controversy surrounding the use of the Internet to download copyrighted material. Gordon explains how constantly evolving technology is challenging copyright's condition of fair use, particularly in the area of peer-to-peer (p2p) file-sharing. Arguments for file-sharing include freedom of speech, fair use, encouragement of technological innovation, and testimonials by musicians who have gained exposure from the practice.
Most important, the author offers clear, concise explanations of what constitutes fair use. A glossary, suggestions for further research, and source notes for quotations are included. Other topics considered in the series include abortion, human rights, and alcohol. Ed Sullivan
Copyright © American Library Association. All rights reserved.

Copyright and Fair Use on the Internet, Illustrated Essentials
Book by Barbara M. Waxer, Marsha Baum
Copyright and Fair Use on the Internet Illustrated Essentials is a friendly essential guide to understanding and respecting copyright on the Internet.

Trade Marks Law protects words, phrases and symbols that identify goods and services.	Copyright Law protects "original forms of expression" like a poem, painting or musical score.
Patents Law protects "original inventions and processes" including genetically engineered life forms.	Domain Name Disputes arise when cybersquatters register domain names identical to or similar to trademarks.
Designs Law protects novel original design. Industrial designs are an element of intellectual property.	Trade Secrets Law protects information, including a formula, method and marketing strategies.
Traditional Knowledge The traditions, customs and practices of indigenous, or local communities.	Fair Use allows the public to copy works without having to ask permission or pay licensing fees.
Geographical Indications to identify goods originating from a definite territory.	Plant Varieties Laws to protect “plant varieties” as an Intellectual Property Right.
Database Rights A sui generis right to provide greater protection to collections of information.	Mask Work intellectual property right conferring time-limited exclusivity to reproduction of a particular layout.
Moral Rights distinct from any economic rights tied to copyright, like the right to the integrity of the work.	Right of Publicity protects celebrities’ interests in their voice, images and identities.