Copyright Law - Grasping The Concept of Fair Use

Copyright owners yell protect my rights! Online publishers yell fair use lets me use your copyrighted material! Who is right? The answer is found in the concept of fair use.

Let's assume you've decided to write the next great American novel. You spend two years slaving over it. Two long, hard years of getting the characters and plot just right. Miracle of miracles, the book gets picked up by a big publisher and it becomes a hit.

Then people start copying and publishing it all over the web. How are you going to feel about that? Not too good given the blood, sweat and tears you put into creating it. The question is whether fair use allows them to do this? The answer might surprise you.

Under the concept of fair use, I can use your copyrighted work without your permission. That being said, there are limitations to this right. I can only use it as part of a review or criticism of the work; in news reporting; teaching; scholarship or research. Let's look at two examples to flesh this out.

Let's assume your wrote a science fiction novel. I have a site wherein I review the latest sci-fi novels. Can I use your novel on my site without permission? Yes, because I am providing a review and/or criticism of it.

Now let's take the same scenario with a twist. You publish the novel and I copy the cover and summary for it off of Amazon, optimize the page and try to get ranked number one for it so I can make money on affiliate sales. Can I do this? Not under the provisions of fair use because it doesn't fit any of the acceptable categories. That being said, neither you nor your publisher is going to be complaining much since you get revenues from each sale, but this is a subject for another article.

Fair use is clearly a justifiable defense to a copyright infringement claim so long as you are using the copyrighted material within one of the acceptable areas. If you are not, then fair use is simply not a defense of any sort.

Richard A. Chapo is with SanDiegoBusinessLawFirm.com - providing copyright registration services.