According to the U.S. Copyright Office, copyright is a form of intellectual property law that protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.
Copyright attaches the second a piece of original work is created, whether it is published or unpublished. In the online environment it refers to a blog post or even a selfie you upload but then decide not to put on Facebook. You are still protected by copyright.
Under copyright law, the creator of an original work has complete control over the use and distribution of a piece of work. The Copyright Act grants the following five rights to a copyright owner:
1. The right to reproduce the copyrighted work.
2. The right to prepare derivative works based upon the work.
3. The right to distribute copies of the work to the public.
4. The right to perform the copyrighted work publicly.
5. The right to display the copyrighted work publicly.
To use an image someone else created requires an authorization from the creator. That rule is not the end of the discussion however, as evidenced by the millions of images on the internet which are neither authorized by the creator, or in violation of copyright law.
The exception to the rule is “fair use” which puts limits on the rights of exclusivity that are granted by copyright to the creator of a piece of work. In the United States, fair use allows for limited use of copyrighted material without authorization from the creator of the work.
The principle behind fair use is to provide limited use of certain works, if it benefits the public. Fair use provisions of the copyright law permit use of copyrighted materials on a limited basis for specific purposes without the permission of the copyright holder.
This is the four factor test that is applied when determining whether a use falls under fair use:
1. Purpose of Use – Nonprofit, educational, scholarly or research use; Transformative use: repurposing, re-contextualizing, creating a new purpose or meaning.
2. Nature/Type of Work – Published, fact-based content.
3. Amount Used – Using only the amount needed for a given purpose; Using small or less significant amounts.
4. Market Effect – If there would be no effect, or it is not possible to obtain permission to use the work.
Courts will weigh all four factors to decide whether a fair use exemption seems to apply to a proposed reuse. To help support a fair use case for an image, consider:
• Using a lower resolution or thumbnail version;
• Use the image in a new context or for a new purpose; and
• Use only the parts of the image needed for the purpose.
Judges will focus primarily on whether the use of the work transformed the material by using it for a different purpose; and was the amount of the work taken appropriate to the new purpose.
For more on copyright, estate planning, or other business matters, schedule an appointment today with Virtus Law. We have experienced litigators ready to defend your intellectual property rights. Give us a call at 612.888.1000 or email us at firstname.lastname@example.org. We will generate a return on your investment in outstanding legal advice.