Fair Use Vs. Intellectual Property

October 7, 2015

The IP Basics

Intellectual property laws protect the ideas and products of inventors and entrepreneurs. However, others may make limited use of this protected property under the doctrine of fair use. Defining what is fair use and determining whether or not a particular instance violates this doctrine are questions that can be answered by an intellectual property attorney. Understanding the basics of intellectual property and fair use is a good first step toward ensuring that the rights of others are not infringed.


Various forms of intellectual property protection are available under U.S. law. Copyrights protect a creative work that is preserved in tangible form, like a book or audio recording. Registering the creative work with the U.S. Copyright Office provides the owner with means to seek legal solutions if they believe their copyright has been violated. Individuals and companies register trademarks with the U.S. Patent and Trademark Office to protect themselves against the misuse of their name, logo, slogans or other identifying marks. Inventions and processes may also be protected through obtaining a patent.
 
Fair Use
All of these methods of protecting intellectual property ensure that the benefits derived from the use of the property comes to the owner and not to someone else who is unfairly making use of another's rights. Owners of intellectual property vigorously defend their rights, sometimes resorting to lawsuits when the infringing use is particularly willful and egregious.
 
However, it is sometimes acceptable to make use of otherwise protected material. Under the doctrine of fair use, which is described in Title 17, Section 107 of U.S. laws, use of protected material is permissible if it is for "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research ... ." Fair use is most often employed in academics. It's what allows a teacher to make copies of a copyrighted poem to be distributed to a class full of students. It's also what makes it possible for a student to use a quote from a copyrighted work when writing an academic paper.
 
The Discrepancy
The difference is how and why the material is being used. In either of the above examples, infringement would have occurred if either the student or the teacher tried to profit monetarily from the use of someone else's work or if either one failed to give proper credit to the actual author of the work. If the teacher passed out copies of a poem but claimed she had written it instead of attributing its creation to its author she would be guilty of infringing the author's rights. Moreover, she would essentially be committing plagiarism or stealing someone else's work by claiming it as her own.

Title 17, Section 107 makes these distinctions very clear. It outlines several factors that must be weighed when determining fair use. For instance, the law says that use of a "commercial nature" may not be appropriate while use for "nonprofit educational purposes" is likely to not be considered infringing. The law also looks at how much of the protected work is used and the effect of the use on the overall value of the piece.

It isn't always easy for the average person to determine whether or not they are violating intellectual property laws or if the fair use doctrine protects them. Schedule an appointment with intellectual property attorney Jeff Williams to learn more.
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