This means that if, for example, a school teacher was to make a photocopy of various parts of a novel and sell those to her students then she could potentially be liable for infringement and could be sued by the author. But, in the world of copyright law there are some instances where you do not need permission to use another’s work.
The law recognizes that there are some circumstances where it is “fair” to allow another to use the copyrighted work without being held liable for infringement. The Copyright Act explains that use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”[1]
However, the simple fact that something is used for “teaching” (for example) does not mean that all use of the copyrighted work in such a circumstance is fair. For example, a teacher cannot make photocopies of an entire text book and sell those copies to its students. When evaluating whether something is “fair use” of a copyrighted work, the courts look at various factors, on a case-by-case basis.
It is important to remember that these are factors, and must be looked at as a whole. Not one particular factor will conclusively decide all cases. For example, not all non-profit use is considered fair use. The court will balance various factors in determining whether the use is fair.
Although the courts may look at other factors in their case-by-case analysis of the facts, the following four key factors are listed in Section 107 of the Copyright Act:[2] (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount of the work used; and (4) the effect on the potential market.
1) Purpose and Character of Use
The courts look at whether the use of the copyrighted work is for commercial or non-profit use. Though not conclusive, generally commercial use is more likely to be infringing use and non-profit use would more often be non-infringing. For example, if you make exact copies of a piece of sheet music and sell those copies on a street corner then you are likely infringing the copyright. However, if you are the choir director for your non-profit church choir and you make some copies for the choir members to use in a special musical number during worship service, you may have a good argument that you are not liable for infringement under fair use.
2) Nature of Copyrighted Work
The purpose of copyright law is to encourage creative expression, by protecting an author/artists work, thereby given them an incentive to create. As a result, the courts look at, essentially, how creative the original copyrighted work is. The more creative a work is (such as a fiction novel, a song, etc.), the more likely the use of it will be considered infringement. On the other hand, the use of something factual (such as a news story) could more easily be argued that it is fair use.
3) Amount Used
The courts are also concerned with the amount or substantiality of the copyrighted work that was used. In other words, if you were to copy an entire book it would more likely be infringement than if you only copied a page or two. However, it could still be considered infringement if you were to copy the “important” part of the work, even if it is a small portion compared with the whole.
4) Effect on Potential Market
Does your use of the copyrighted work harm the existing or future market for the copyrighted work? If your use of the copyrighted work would potentially cause the original author to lose out on potential sales of the original, then it is likely infringement. For example, copying and then distributing an entire textbook (even though it is for “teaching” purposes) would likely be considered infringement, since it affects the text book author’s ability to sell the book to students.
The best practice is to always get permission from the original author before using a potentially copyrighted work. However, as explained above, the law does allow for some use of a copyrighted work without resulting in an individual being held liable for copyright infringement.
If you have questions about the potential use of a copyrighted work, or if you feel that your copyrighted work is being improperly used by another, call the trial attorneys at Goosmann Law Firm in our Omaha, Sioux City, or Sioux Falls offices.
[1] See section 107 of the Copyright Act; https://www.copyright.gov/title17/92chap1.html#107
[2] See https://www.copyright.gov/title17/92chap1.html#107