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Florida Intellectual Property Attorney > Blog > Trademark Copyright Infringement > Three Things to Know About the ‘Fair Use’ Doctrine

Three Things to Know About the ‘Fair Use’ Doctrine


Under United States copyright law, the creators of original works are entitled to exclusive rights over the reproduction and commercial distribution of the work. Copyright protection is a valuable form of intellectual property. That being said, there are some notable limitations to the law. Perhaps the most important is the

fair use doctrine

. In this article, our top-rated Boca Raton trademark & copyright infringement attorneys highlight three things you should know about fair use and copyright law.

  1. Fair Use is a Copyright Exception that Requires Substantial Transformation

Fair use permits the limited use of a copyright protected work without permission from the rightful owner. As explained by the U.S. Copyright Office, fair use is designed to promote freedom of expression. It allows individuals or organizations to use a work for purposes such as commentary or parody. In order to qualify for fair use protection, the new work must be “substantially transformative.” Without a legitimate transformation, this copyright exception does not apply.

  1. There are Two Main Types of ‘Fair Use’

As a general matter, fair use fits into one of two basic categories:

  • Commentary/Criticism: The commentary or criticism fair use exception applies when a person expands on the original, copyright protected content with their own, unique work. As an example, a book reviewer publishing a story about a novel can reproduce otherwise protected material from that content because they are substantially transforming the work by adding new details.

  • Parody: The other primary form of fair use is parody. With parody, work is taken from its original source and transformed to make a broad social, political, or cultural point. It should be noted that the fair use on the grounds of parody is relatively broad. Often a considerable amount of content is taken from the original (protected) work to ensure it is understandable to viewers.

  1. Courts Take a Balanced Approach

To be eligible for fair use protection, the new work must be substantially transformative. Unfortunately, that standard is not especially well-defined. Should a fair use infringement case go to litigation, a court will consider the totality of the circumstances. In assessing a fair use claim, courts will use a wide range of different factors, including:

  • How innovative and unique the underlying work is;
  • The extent to which the original work was used;
  • The purpose and character of the supposed ‘fair use’; and
  • The commercial effects, or lack thereof, on the original work.

Ultimately, courts will take a comprehensive and balanced view when reviewing fair use disputes. If you or your company is currently involved in a fair use case, it is crucial that you gather and assemble as much relevant evidence as possible.

Speak to Our Copyright Infringement Lawyers Today

At Perkins Law, our South Florida intellectual property attorneys have deep experience handling infringement cases. If you have questions or concerns about the fair use doctrine, we are available to help. For a confidential, no obligation consultation, please contact us today. With an office location in Boca Raton, we serve individuals and companies in Florida and nationwide.



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