Fair Use Defense to Copyright Infringement

In deciding whether the use of particular copyrighted work is a fair use freeing a defendant from copyright infringement liability, the courts consider the following factors, with no one of these factors being dispositive:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107.

All of these factors should be considered, on a case-by-case basis, in light of the purpose of the copyright statute with no one of the factors taking precedence over the others. As one court stated, “The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.” A defendant carries the burden of demonstrating their fair use affirmative defense. See Chicago Sch. Reform Bd. of Trustees v. Substance, Inc., 79 F. Supp. 2d 919, 930-31 (N.D. Ill. 2000) (laying out four elements of fair use defense and striking defense where “Defendants present little to support that their use . . . was fair” and “never even recite the fair use factors in any of their pleadings, much less discuss how those factors weigh in their favor.”)

The reason for the defense is to permit use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching . . ., scholarship, or research[.]” 17 U.S.C. § 107. In other words, the fair use defense is meant to prevent the monopoly granted by copyright law from stifling the spread of knowledge or criticism. See Wall Data Inc. v. Los Angeles Cty. Sheriff's Dep't, 447 F.3d 769, 777 (9th Cir. 2006). The defense generally requires the use of the work to be “transformative” (e.g. changing the lyrics of a song to create a parody or quoting from a copyrighted work in a classroom lecture on a topic covered in the work). Id. at 778. Copying a work without authorization—not to comment or criticize—but simply to avoid paying for an authorized copy is not fair use and “such a use will be deemed in law a piracy.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 550 (quoting Folsom v. Marsh, 9 F.Cas. 342, 344-45 (D. Mass. 1841)); see, e.g., Wall Data, 447 F.3d at 778-79 (creating unauthorized copies of software “to save the expense of purchasing authorized copies” was not fair use (quoting A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001))).

“[E]very commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.” Harper & Row, 471 U.S. at 562 (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984)). Pirating computer software or some other copyrighted work can never give to a fair use defense. Wall Data, 447 F.3d at 778 (using pirated software for “the identical purpose as the original software . . . cannot be considered transformative”).

Our Chicago Copyright attorneys located in Chicago, Wilmette and Elmhurst have prosecuted or defended many different types of intellectual property and copyright disputes, including obtaining summary judgment for the largest mutual fund company in Canada in a copyright lawsuit brought in Chicago alleging infringement of copyrighted software. You can review the full decision here. We have also successfully prosecuted many copyright infringement cases against large multi-national corporations. Call one of our Chicago Business Litigation Attorneys for a free consultation at our toll-free number 630-333-0333. You can also reach us online.

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