“Fair Use” Defined

Q. Can you explain fair use as it applies to art copyright law?

A. The unauthorized copying of a copyrighted work is generally an infringement. There are, however, defenses available for copiers in certain limited situations. The most important of these is the fair use doctrine. In order to determine whether an unauthorized use of a copyrighted work is defensible as fair use, a court must evaluate at least the following four factors:

  1. The nature of the work being copied, that is, whether the copyright owners may have intended the work to be copied (e.g., a book of patterns or of clip art) or not to be copied (e.g., a consumable such as a workbook);
  2. The nature of the use, that is, whether the unauthorized use is transformative (adding new value, such as using quotes from an art book in a review of that book) or merely provides a substitute for the protected work;
  3. The extent of copying; that is, copying a significant portion of the work or even a small portion that is the “heart” of the copied work will generally not be fair use;
  4. The effect the copying will have on the copyright owner’s market; that is, whether the unauthorized use will deprive the copyright owner of a sale.

In general, an artist who can obtain permission to use the copyrighted work of another should do so, since relying on the fair use doctrine could prove to be a very expensive, time-consuming and stressful experience, even if successful.

Copyright laws are subject to change. This article was originally published in the July/August 2007 issue of The Artist’s Magazine and reflects the laws in effect at the time the article was written.

Leonard DuBoff was a law professor for more than 24 years and has testified in Congress in support of laws for creative people, including the Visual Artists Rights Act of 1990. A practicing attorney and pioneer in the field of art law, he has also assisted in drafting numerous states’ art laws and has authored more than 20 books. In addition, he writes regular columns for such magazines as Communication Arts, Interface and Glass Craftsman. For further information, visit www.dubofflaw.com.

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