The Fair Use Exception to Copyright Infringement

Updated: Sep 11

Fair use is a legal doctrine that provides a defense to claims of copyright infringement. This article explores the elements of such a defense that businesses should discuss with their Washington State attorney.



Who owns copyrights?

Generally, the owner of copyrighted work is the one who created it, except in cases where there was an agreement to create the work for someone else, or if the owner later legally transferred their rights to someone else. Like when Michael Jackson acquired the rights to over 200 Beatles songs. And just like any other property, the owner has exclusive rights to completely control how its used.


What can the copyright owner control?

  • The right to reproduce the work

  • The right to publish or distribute the work

  • The right to display the work in public

  • The right to perform the work in public

  • The right to prepare derivative works (such as the sequel to a movie or book) based on the original work

As you can see, the copyright owner has complete control. And simply acknowledging the owner's ownership of the work is not a defense to appropriating it. Imagine if someone stole a car, and then thought they should get away with it because they simply acknowledged the real owner.


"...simply acknowledging the owner's ownership of the work is not a defense to appropriating it."

What is the fair use defense?


The fair use defense comes from a federal statute–17 U.S. Code § 107–that provides a list of factors to apply to a claim of copyright infringement to determine if the unauthorized was "fair," and thus not considered copyright infringement. Although the statute lists some examples of uses that could be considered fair, such as educational uses, there is no bright-line test for determining fair use. In other words, simply saying it's for educational purposes isn't the end of the inquiry. It's easy to understand why, when you consider that educational uses could take many forms, from playing a 30-second song clip in a classroom, to performing an entire copyrighted play for the public. The only way to determine fair use is by examining the following four factors provided by the statute:


(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

This deals with whether the copyrighted work is based on factual elements or creative elements. It's the difference between a book about the real habits of whales, as opposed to a book about a fantasy world.

(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.


"...there is no bright-line test for determining fair use."

The last element is compelling, because it examines the potential for economic injury to the copyright owner, which is what copyright law aims to protect against. The seminal case in fair use law came from the U.S. Supreme Court, and it involved singer Roy Orbison suing Two Live Crew over their sampling of the song "Pretty Woman." Two Live Crew won the case, in large part because their song was so different from Orbison's that it wasn't an adequate substitute for the original. In other words, fans of the original would never forgo buying a copy in favor of the Two Live Crew song, because the songs conveyed completely different sentiments and styles. Thus the new song posed no risk of economic injury to Orbison.


Washington businesses should be mindful of how the fair use doctrine applies to copyright law, so they don't accidentally infringe on intellectual property rights, and know how to protect their own rights. If your Vancouver WA business has questions about copyright law, contact In-house | On-site to speak with a Vancouver WA lawyer with experience handling these issues.

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