Fair Use – When Is It Fair?

Fair Use is the concept that sometimes copyrighted material – such as a song created by a songwriter – can be used without permission or payment.  Fair use is a limitation or exception to the exclusive rights given to the creator of an artistic work by copyright law.  But Fair Use is limited to narrow categories: news reporting, research, teaching, scholarship, commentary, criticism. 

There are four elements to determine whether use of copyrighted material is a Fair Use:  the purpose and character of the use; the nature of the copied work; and amount of the work copied; and the effect of the copying on the copyrighted work’s value.  Generally, the greater the amount of the copyrighted work used, the less likely there is a fair use.  And if the use reduces the copyrighted work’s value, the less likely there is a fair use.

            Using a sample of music is probably never Fair Use.  Using a copyrighted work for a non-commercial reason is not necessarily fair use.  Using a copyrighted work for a commercial reason – to make money – is probably not a fair use.  But parody, even for profit, can be a fair use.  In the Supreme Court case Campbell v. Acuff-Rose Music, Inc., Roy Orbison's music publisher, Acuff-Rose Music Inc., sued 2 Live Crew for their use of "Oh, Pretty Woman."  The Supreme Court said 2 Live Crew’s version with altered lyrics was a ridiculing commentary. Because the parody was the product, rather than used for advertising, commercial sale did not bar the Fair Use.

            But remember, while Fair Use is a defense against copyright infringement, it does not stop anyone from suing to get a court’s opinion on whether a use is Fair Use.  Fair Use is a very technical aspect of copyright law and should not be taken lightly.  It is always best to get permission, or pay the proper royalty, before using any copyrighted material – and of course, get proper legal counsel.