intellectual property · defense
Fair use is an exception to copyright law that permits the use of copyrighted material under certain circumstances. This doctrine balances the interests of copyright holders with the public interest in the dissemination of information, creativity, and education.
This element assesses whether the use is for commercial purposes or for non-profit educational purposes.
What to prove: To satisfy this element, one must show that the purpose of the use is transformative, educational, or otherwise in the public interest rather than purely commercial.
This considers whether the work is factual or fictional in nature, with the presumption that factual works are more likely to qualify as fair use.
What to prove: It must be shown that the copyrighted work is either factual or creative, with a stronger argument for fair use when utilizing factual works.
This element examines how much of the original work has been used, both qualitatively and quantitatively.
What to prove: The user needs to demonstrate that only a limited amount was taken, and the portion used does not constitute the 'heart' of the original work.
This factor evaluates whether the use adversely affects the market for the original work or its potential market.
What to prove: It must be shown that the use does not harm the legitimate market for the original work or that it is unlikely to substitute for the original.
The burden of proof lies with the defendant claiming fair use, and the standard is a preponderance of the evidence.
Expect to analyze fact patterns where you will need to apply the four factors of fair use. Be prepared to discuss how each factor weighs in favor or against a claim of fair use.