What Are the "Fair Use" and "Parody" Exceptions to Copyright Protection?

Artists, scholars, and reporters regularly build on the work of their predecessors.  Recognizing that, the Copyright Act of 1976 provides that the “fair use of a copyrighted work” does not infringe.  The statute does not define “fair use,” but it provides a number of examples, including criticism, comment, news reporting, teaching, scholarship, and research.  To determine whether a use is “fair,” courts principally consider four factors.

  1. Purpose and character of the use. Does a new use of the copyrighted work serve a different purpose than the original?  A book review, for example, serves a different purpose than the book it quotes. When evaluating the purpose and character of the use, courts ask whether the use is “transformative” of the original copyrighted work.  Parody almost always serves a transformative purpose because it criticizes or mocks the original copyrighted work, rather than repeating the work’s original message.
  2. Nature of the copyrighted work. To what degree is the original copyrighted work creative, as opposed to factual, and has it been published?  Facts and ideas are not subject to copyright. Use of factual portions of a copyrighted work thus is more likely to be considered “fair.”  Unpublished works, in contrast, are not part of the public domain, and copying of such works is less likely to be considered fair use. 
  3. Amount of the original copyrighted work used. Where a new use copies only a small portion of the original copyrighted work, it is more likely to be considered fair use.  Courts also consider the significance of the copied portion.  Even use of a small portion may not qualify as fair if it represents the heart of the copyrighted work.
  4. Effect on the value of the copyrighted work. Does the use affect the ability of the owner of the original work to profit from that work?  Courts consider only some types of harm to an owner’s profits, such as whether the challenged use can substitute for the copyrighted work or reduce its licensing value. Courts do not take other harms into account, such as the reduced demand caused by parody or a negative review.

Courts balance all four factors, and none is dispositive.  The ultimate question is whether the use in question contributes something additional to public dialogue, instead of merely replicating the original copyrighted work.

If you have questions about a copyright, you should consult an attorney.  Skilled intellectual property lawyers can help you and your company navigate pending or contemplated litigation, reaching the best possible resolution.

To learn more about intellectual property, go to www.mololamken.com and follow us on LinkedIn.  “Brilliant lawyers with courtroom savvy”—Benchmark Litigation.  Copyright MoloLamken LLP 2021.

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