How Do You Determine Fair Use Of Copyrighted Material?


Fair use has been one of the most hotly debated copyright legal issues, in terms of its use. Creative Screenwriting demystifies the law in this article.

Original Factors For Fair Use

Dating back to the 1800’s, the original factors for determining when a person could use another’s work in their own work without permission included: the nature and objects of the copyrighted work used, the quantity and value of the portions of the copyrighted work used, and the degree in which the new work would adversely impact the market for the underlying copyrighted work used (that is, would the new work adversely impact the underlying copyrighted work’s sales, profits, or purpose).

Equity & Fairness Is Determined On A Case-By-Case Basis

Today, courts look at four factors to decide whether Fair Use is applicable. The factors are described in Section 107 of the Copyright Act. However, the Copyright Act allows the Courts to decide the application of Fair Use on a case-by-case basis. This is because Fair Use is based on equity.

Fair Use is considered a form of equitable relief and an equitable defense to a claim of infringement. In the United States, there are two jurisdictions that the Courts administer – Courts of Law and Courts of Equity. Simply put, equity is based on what is fair and reasonable when there is no legal statutory authority controlling the factual situation. Equitable relief permits the Court to order a party to do or not do something. In this type of factual situation, it is important that the party seeking equity have clean hands and show good faith and fair dealing. Therefore, each case falls on its own facts and there is no bright-line rule.

Factors for Fair Use In Section 107 Of The Copyright Act

Section 107 of the Copyright Act balances copyright law with the First Amendment right to freedom of expression. Section 107 lays out the balancing factors to be considered. Section 107 is titled “Limitations on exclusive rights: Fair Use” and states:
“[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.

In determining whether the use made of a work in any particular case is a Fair Use the factors to be considered shall include—

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.”

Again, there is no bright-line rule and each case is determined based on its own facts – a case-by-case basis. There is no exhaustive list of the uses of copyrighted work that are always allowed pursuant to the Fair Use doctrine. Rather, the U.S. Supreme Court has made it clear that all factors must be considered in any given case.

Purpose Of The Fair Use Doctrine

Fair Use does not allow you to steal other people’s creative works. Rather, the purpose and rationale of the Fair Use doctrine are to promote creativity – to allow people to make more original creations. Fair Use is a limit to the exclusivity of the rights belonging to a copyright owner. Material from a copyrighted work can be used without the permission of the copyright owner if that material is simply a component, an ingredient, an element of a new original creative work as a whole. The underlying copyrighted work used cannot be the focus or the purpose of the new work. Instead, the new work must be a new creation. This is in line with the purpose of the Copyright Act, which is to promote creativity.


Now that we’ve covered the basics of the Fair Use doctrine, you can be more aware of when you may be able to use copyrighted material without the copyright owner’s permission. However, it is always better to be safe and attempt to get permission – this shows good faith on your part.

This article contains general legal information for educational purposes only and does not constitute legal advice.



Justin Sterling, Esq. is the Founder and Principal Attorney of The Sterling Firm, a Professional Law Corporation. Mr. Sterling has been involved with the entertainment industries for over a decade. Many of Mr. Sterling's clients include writers, producers, creative artists, and investors from across the world. The Sterling Firm is a full-service civil litigation and transactional law firm concentrating on Personal Injury, Business Law, and Entertainment Law. Mr. Sterling is licensed by the California State Bar and the United States District Court for the Central and Northern Districts of California. He is committed to representing clients and serving the legal community with the utmost professionalism and compassion. Mr. Sterling attended law school at the University of West Los Angeles School of Law, where he graduated Suma Cum Laude. Mr. Sterling also obtained his undergraduate degree from West Chester University, where he graduated Magna Cum Laude. <br> <table> <tr> <td><a href=""><img src="" style="height:25px"></a> </td> <td><a href=""></a> </td> </tr> </table>

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