Fair Use :
If copyright is a fence, then fair use is the gate. - Negativland
Though
a copyright owner may prove infringement, a defendant may assert a defense
of fair use and avoid liability. The judicially created doctrine of
fair use was codified in the 1976 Copyright Act as Section 107. In essence,
it tilts the copyright seesaw towards favoring the free flow of information
and the resulting progress of culture away from the exclusive rights
of the copyright owner.
Congress outlined four factors for courts to consider when a defendant claims a fair use. They are illustrative rather than exclusive and the court may consider other factors in their analysis. Since the court is given such broad discretion in a fair use analysis, there exists an overwhelming confusion as to how the law is to apply.
Factors
to be considered shall include:
(1) The purpose and character of the use,
including whether such a use is of a commercial nature or is for nonprofit
educational 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.
The
full text of the statute is available here.
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