Photographers, writers, artists, authors, universities, sports teams, and others, all have intellectual property to protect. From trademarks to patents to trade secrets to copyrighted materials, these individuals and businesses want to be sure that they are appropriately credited and compensated for the value of their work. Therefore, it is logical that when they see someone using their intellectual property (IP) without consent, they might think of this use as an infringement of their intellectual property rights. United States law, however, allows for some limited exceptions to the exclusivity of IP rights. For copyrighted materials, many of these exceptions fall under the legal doctrine of fair use. Fair use and intellectual property constitute a common area of questions and confusion for businesses and individuals. If you have questions about whether someone’s use of your intellectual property falls under the fair use clause, or other questions related to copyright protections Sullivan & Carter, LLP may be able to assist you. Call (929) 724-7529 to schedule a consultation.
Copyright is the legal term for the usage rights to original creative works fixed into tangible forms of expression. Common examples of such works include novels, screenplays, software programs, and musical compositions. Copyright itself does not require any registration, acknowledgment from outside sources, or permission to exist; by default, the copyright to any work belongs to its creator as soon as that creator has fixed their original idea into a tangible form of expression (such as musical notation or lines of software code). Copyright law spells out the protections that a copyright owner has. Additionally, the law also dictates how the copyright owner can enforce their copyright.
Copyright law in the United States is governed by Title 17 of the United States Code, which includes the Copyright Act of 1976 and all subsequent amendments. Title 17 also contains the Semiconductor Chip Protection Act of 1984 and the Vessel Hull Design Protection Act. The United States Copyright Office (USCO) registers intellectual property rights under all three acts.
The first chapter of Title 17 defines copyright and elaborates the types of works copyright law protects. This chapter also explains how copyright owners can register their works, and delineates lawful exceptions to the exclusivity of copyright, providing for a range of uses that may be considered “fair,” or non-infringing, even without the copyright holder’s permission.
Copyright law protects the intellectual property rights to original works of authorship fixed in tangible forms of expression. This area of law covers works in both media already existing and works created in any newly developed media. Examples provided by in Title 17 include:
Once registered, the copyright lasts for the life of the author plus a set number of years after their death. For those works with multiple authors, copyright lasts for the life of the last living author, plus the specified years after their death. Boise State University’s Office of the General Counsel’s chart titled “When U.S. Works Pass Into the Public Domain” provides detailed information regarding how to determine if a work is still copyrighted or has passed into the public domain.
The Fair Use Clause of Copyright Law provides limitations on the exclusive rights of the copyright owner. These limitations are quite narrow to ensure that the copyright owner retains their rights while allowing the general public to make limited use of copyrighted materials for certain purposes without having to contact the copyright owner for consent for every use.
Fair use allows for the use of portions of a copyrighted work to comment on the work, criticize or review the work, provide news coverage related to the work, as well as for teaching, scholarship, or research. When used for teaching, fair use may sometimes allow for multiple copies of short excerpts from a work for use in a classroom.
Fair use lets individuals or organizations other than the copyright owner reproduce and reuse portions of a copyrighted work in ways that are considered fair. However, it limits those uses to specific ones, such as teaching, news reporting, reviews, criticisms, comments, research, and scholarship. Even with those limitations, federal courts still enjoy broad discretion in what is considered fair use and what is not. Typically, in an instance of copyright infringement, the court will consider four factors:
The interaction of these four factors can mean that it is not always easy to define fair use. There is no specific number of words, lines, notes, or other aspects of a copyrighted work that defines the difference between fair use and infringement. The exact same use may be fair use in one circumstance and infringement in another, based on the four factors and other information relevant to the case. Those who want to use copyrighted material under fair use should also be aware that acknowledging the source is not a substitute for obtaining permission from the copyright holder. For this reason, you may want to speak with an experienced copyright attorney with Sullivan & Carter, LLP to ensure whether a specific use is fair use or infringement before proceeding with either the use of copyrighted materials without written permission from the copyright owner or an infringement lawsuit.
Fair use and intellectual property rights are sometimes seen as being at odds, or confusing. In reality, however, the tension between fair use and intellectual property rights is conceptually in keeping with the limitations on all other property rights. The owner of a beautiful home in a city’s historic district has the right to decline to give tours; they likely will not have the right to prevent tourists strolling the neighborhood sidewalks from snapping photos of the exterior as they pass by. The legal doctrine of fair use is an acknowledgement that intellectual property rights, like other property rights, are extensive, but not unlimited; they are always balanced by others’ rights and the public interest.
Fair use can provide many benefits to the copyright owner as well as those who use the copyrighted work under the fair use clause. A few examples of the benefits of fair use include:
Perhaps the greatest difficulty posed by fair use is that fair use is left open to broad interpretation in some ways. While there are specific rules regarding the uses, the four factors considered by the courts to determine fair use allow the court to look at two instances of use that are very similar and find one to be fair use and the other not. Because defining fair use can be complicated, it is critical that both copyright holders and those seeking to use copyrighted material under fair use do as much as they can to understand the specific rules. Otherwise, simple misunderstandings could lead to civil litigation.
Fair use can have a significant impact on copyright litigation. Without fair use, any use not explicitly authorized by the copyright holder or someone authorized to act on their behalf would be considered copyright infringement. Copyright owners are not necessarily required to take action against potential instances of infringement to retain their IP rights. However, many copyright owners do wish to take action against perceived infringements. Fair use provides a litmus test of sorts for helping IP owners to determine whether a use merits the investment of time, money, and attention involved in pursuing copyright litigation.
While fair use is intended to, and often does, reduce copyright litigation, it has also had the effect of complicating such litigation. Because fair use can be so complicated to define and identify at times, copyright holders may find themselves confused about when to file an infringement claim. They may file claims that do not need to be filed or miss claims they should have filed.
Fair use may allow copyright holders and those who claim fair use to settle disagreements without litigation, however. If the two parties are able to sit down, perhaps with the assistance of a neutral third party, and share their perspectives of fair use and find common ground, they may be able to avoid going to court.
Trademarks protect brand identities, such as their names, slogans, and logos. However, because copyright protects original works, logos or designs that are part of a brand’s identity may be both a trademark and a copyright, although this is rare, according to the Copyright Alliance. When the two do overlap, this can mean one piece of intellectual property used without permission may be both trademark infringement and copyright infringement. On the other hand, that same use could be trademark infringement but not copyright infringement under the Fair Use clause. Copyright owners who wish to pursue litigation to protect their intellectual property rights will need to be clear about the type of infringement they are alleging.
Every business has intellectual property to protect. While copyright typically belongs to a work’s creator immediately upon fixation of the original idea in tangible form, and copyright registration does not require taking action on infringement, your business may suffer if you do not protect your copyrighted material. From your reputation to loss of revenue, pursuing infringement claims - and understanding when not to - matters. If you have questions regarding fair use and intellectual property, consider scheduling a consultation with one of the experienced Chicago intellectual property attorneys Sullivan & Carter, LLP by calling (929) 724-7529.
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