Fair Use

If you are using copyrighted material without permission or ownership of the material, your use may be considered fair use by copyright law. The KML encourages users to only use material that they own, have permission to use, or properly cite. We realize that this is not always possible as many useful materials cannot be properly tracked to an owner to acquire permission. In these cases use of these materials may be covered by fair use.

When a copyright holder sues a user of the work for infringement, one defense that the user may have is the defense of fair use. Under the fair use doctrine, it is not an infringement for one to use the copyrighted works of another in some circumstances. However, it is difficult to define what exactly constitutes fair use because courts consider the defense on a case by case basis, and the analysis of the defense varies with the facts of each case. Although the fair use defense was available for many years, the doctrine was first codified by Congress in the Copyright Act of 1976 in Section 107. Section 107 gives a non-exhaustive list of examples of when the fair use defense could be successful. The list includes criticism, comment, scholarship, research, news reporting and teaching as uses that may be fair. The list also gives four guiding factors courts will consider in deciding whether a use is fair or not. These factors are:

1. The purpose and character of the use (the more transformative the use, the more likely to be fair use, whereas if it merely reproduces the work without putting it to a transformative use, the less likely this use will be held to be fair; further, the more commercial use, the less likely such use will be fair),

2. The nature of the copyrighted work (first, the more creative and less purely factual the copyrighted work, the stronger its protection; second, if a copyrighted work is unpublished, it will be harder to establish that use of it was fair),

3. The amount and substantiality of the portion used (did user copy nearly all of, or the heart of, the copyrighted work? If so, such use is less likely to be fair), and

4. The effect of use on the potential market for the copyrighted work.

Of course, even with these factors, it is problematic and often unyielding to try to predict what uses a court will deem fair.

from:
chillingeffects.org/fairuse
chillingeffects.org/fairuse/faq.cgi

The foregoing description of the fair use doctrine is general in nature and does not constitute legal advice regarding your rights or any specific dispute.