Copyright law protects works of “intellectual property” — creative expressions of ideas in fixed symbolic form. (Patent law protects the expression of novel ideas in the form of objects or processes.) Books, movies, music, paintings, photographs, websites, images, video games, performances, architecture, and software are among the many types of creative work protected by copyright.

4 Copyright fair use factors

Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors to resolve fair use disputes, as discussed in detail below. It’s important to understand that these factors are only guidelines that courts are free to adapt to particular situations on a case‑by‑case basis. In other words, a judge has a great deal of freedom when making a fair use determination, so the outcome in any given case can be hard to predict.

• the purpose and character of your use
• the nature of the copyrighted work
• the amount and substantiality of the portion taken, and
• the effect of the use upon the potential market.

Purpose and character of your use

The purpose and character of your use. the nature of the copyrighted work. the amount and substantiality of the portion taken, and. the effect of the use upon the potential market.

Nature of the copyrighted work

The second factor in the fair use determination is the nature of the work that is being copied. For example, a court will ordinarily consider whether the copied work is informational or entertaining in nature. A judge is more likely to find a determination of fair use if material was copied from a factual work, such as a biography, then from a fictional work, such as a romance novel or horror movie.

Amount of Copyrighted Work Used

When considering the amount and “substantiality” of the portion taken, the court looks at not just the quantity of the material but its quality. For example, the copying of one minute and 15 seconds of a 72-minute Charlie Chaplin film was considered substantial and was not permitted as a fair use.

Effect of the use upon the potential market

The fourth factor in a fair-use determination is the effect of the use on the potential market for the work that was copied. Consideration of this factor is intended to strike a balance between the benefit that the public will derive if the use is permitted and the personal gain that the copyright owner will receive if the use is denied.

A judge must consider the effect on the potential market for the copyrighted work. This consideration goes beyond the author’s or creator’s past intentions or the means by which he or she is currently exploiting the work.

Copyright test score