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To be transformative, a use must add to the original "with a further purpose or different character, altering the first with new expression, meaning, or message." Campbell, 510 U. A common misconception is that any for-profit use of someone else's work is not fair use and that any not-for-profit use is fair.
Although there is no particular legal doctrine specifying how this is weighed, several court opinions have cited the newsworthiness of the work in question when finding in favor of fair use. Therefore, a finding of fair use may hinge on the nature of the circulated work; simple e-mails such as those in the Diebold case (discussed in detail below) are unlikely to have a market, while blog posts and other creative content have potential to be turned into published books or otherwise sold. Because allowing authors to enforce their copyrights in all cases would actually hamper this end, first the courts and then Congress have adopted the fair use doctrine in order to permit uses of copyrighted materials considered beneficial to society, many of which are also entitled to First Amendment protection. They later abandoned that assumption because many of the possible fair uses of a work listed in section 107's preamble, such as uses for purposes of news reporting, are conducted for profit. This distinction remains mostly to protect the secrecy of works that are on their way to publication.In order for you to assess whether your use of another's copyrighted work will be permitted, you will need an understanding of why fair use applies, and how courts interpret each part of the test. Purpose and Character of Your Use If you use another's copyrighted work for the purpose of criticism, news reporting, or commentary, this use will weigh in favor of fair use. In addition, if you use the original work in order to create a parody this may qualify as fair use so long as the thrust of the parody is directed toward the original work or its creator. So, for example, taking newsworthy quotes from a research report is more likely to be protected by fair use than quoting from a novel. Of course, if you are reviewing a book or movie, you may need to reprint portions of the copyrighted work in the course of reviewing it in order to make you points. Although the copyright holder need not have established a market for the work beforehand, he or she must demonstrate that the market is "traditional, reasonable, or likely to be developed." Ringgold v. The fact that the original work was distributed for free, however, may weigh against a finding that the work had publication value. Caribbean Int'l News Corp., 235 F.3d 18, 25 (1st Cir. Likewise, the fact that the source is out of print or no longer sold will also weigh in favor of fair use. Courts originally presumed that if your use was commercial it was an unfair exploitation. In actuality, some for-profit uses are fair and some not-for-profit uses are not; the result depends on the circumstances.The policy behind copyright law is not simply to protect the rights of those who produce content, but to "promote the progress of science and useful arts." U. Instead, a court will weigh these four factors holistically in order to determine whether the use in question is a fair use. If you include additional text, audio, or video that comments or expands on the original material, this will enhance your claim of fair use. Unlike factual works, fictional works are typically given greater protection in a fair use analysis. If you limit your use of copyrighted text, video, or other materials to only the portion that is necessary to accomplish your purpose or convey your message, it will increase the likelihood that a court will find your use is a fair use. This factor will weigh in favor of the copyright holder if “unrestricted and widespread” use similar to the one in question would have a “substantially adverse impact” on the potential market for the work. An actual effect on the number of licensing requests need not be shown.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -- Unfortunately, there is no clear formula that you can use to determine the boundaries of fair use. If you merely reprint or repost a copyrighted work without anything more, however, it is less likely to qualify for protection under this prong. Although non-fiction works such as biographies and news articles are protected by copyright law, their factual nature means that one may rely more heavily on these items and still enjoy the protections of fair use. In 1992, Congress amended the Copyright Act to add that fair use may apply to unpublished works. If the excerpt in question diminishes the value of the original or embodies a substantial part of the efforts of the author, even an excerpt may constitute an infringing use. However, substantial quotations from non-public sources or unpublished works do not enjoy the same protections. The Effect of Your Use Upon the Potential Market for the Copyrighted Work In examining the fourth factor, which courts tend to view as the most important factor, a court will look to see how much the market value of the copyrighted work is affected by the use in question. Section 107 of the Copyright Act defines fair use as follows: [T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. Purposes such as these are often considered "in the public interest" and are favored by the courts over uses that merely seek to profit from another’s work. Accordingly, the presence of advertising on a website would not, in of itself, doom one’s claim to fair use. 1994) (noting "the public benefits from the additional knowledge that Morgan provides about William Burroughs and other writers of the same era"). Nature of the Copyrighted Work In examining this factor, a court will look to whether the material you have used is factual or creative, and whether it is published or unpublished. The published or unpublished nature of the original work is only a determining factor in a narrow class of cases. Instead, courts look to how such excerpts were used and what their relation was to the whole work. Fair use will not permit you to merely copy another’s work and profit from it, but when your use contributes to society by continuing the public discourse or creating a new work in the process, fair use may protect you. Although courts still consider the commercial nature of the use as part of their analysis, they will not brand a transformative use unfair simply because it makes a profit. Therefore, the nature of the copyrighted work is often a small part of the fair use analysis, which is more often determined by looking at the remaining three factors. Amount and Substantiality of the Portion Used Unfortunately, there is no single guide that definitively states how much of a copyrighted work you can use without copyright liability.In addition, the author of a work not available online, or available only through a paid subscription, may argue that the use in question will hurt the potential market value of that work on the Internet.Assessing the impact on a copyrighted work’s market value often overlaps with the third factor because the amount and importance of the portion used will often determine how much value the original loses.For instance, the publication of five lines from a 100 page epic poem will not hurt the market for the original in the same way as the publication of the entirety of a five-line poem.