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NYC Litigation Blog

Tuesday, June 13, 2017

The Fair Use Defense Explained

What is the fair use defense to copyright infringement?

A recent court case involving LeBron James’ tattoo could set important case precedent on the issue of the fair use defense.  In the case, Solid Oak Sketches, the owner of James’ prominent lion’s head tattoo, filed suit against Take-Two Interactive Software for copyright infringement after Take-Two used the tattoo on its virtual LeBron James in a video game.  Take-Two filed a counter claim seeking to have the court declare the video game’s display of the copyrighted tattoo was either fair use or de minimum use.  The court ruled to allow the counter claims to continue and should soon rule on this important question of fair use.  

What is the Fair Use Defense?

Fair use is legal doctrine that allows for the limited use of copyrighted materials for a transformative purpose, such as to criticize, comment on, or parody a copyrighted work.  Such a use can be done without seeking permission from the copyright owner.  If a court determines the use of the copyrighted material was “fair,” then it does not constitute copyright infringement.  

Fair use can be difficult to ascertain.  Most cases will turn on whether the use was transformative.  The term transformative is not well defined in the statutory law, but case law has provided it with a clearer definition.  Fair use will generally fall into the categories of commentary and criticism or parody.  

Commentary and Criticism

If you are commenting on or critiquing a copyrighted work, fair use will allow you to reproduce a part of the work in order to accomplish your purposes.  This could include quoting a few lines from a famous song in your music review or copying a few lines from a news article for use in a lesson.  Your use must be enhanced by including some of the copyrighted material.  

Parody

A parody involves a work that ridicules a famous work through imitation in a comedic manner.  Parodies often demand taking some portion of the original work in order to accomplish the comedic turn.  Parody will often allow more extensive use of the work as needed to successfully create the parody.

If your copyrighted work is being used by another person or company, or if you are being sued for copyright infringement, contact a copyright infringement lawyer as soon as possible.


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