Necessary Series Disclaimer: I am not a lawyer. The information presented in this series is based entirely on my experience as a creator and curator.
In this section of our discussion on copyright, we’re looking at components of the Fair Use doctrine. Today, we’ll focus on how the purpose and character of the use affects whether or not it’s covered by Fair Use. When we talk about purpose and character in this context, what we’re really talking about is the purpose the copyrighted material is serving in the new material, and whether or nor the new use brings a new meaning to the copyrighted material.
Ideally, this criterion is designed to protect legitimate uses of copyrighted materials in news reporting, research, and teaching, situations where a verbatim copy might be necessary for accuracy or citation purposes and as such, could be seen as not infringing on the original’s copyright. But even scholarly and nonprofit groups using copyrighted material can find themselves running afoul of the Fair Use doctrine if all they are doing is copying without bringing any sort of commentary or transformative use to the original material. It is interesting to note that you can quote a source verbatim with all of the appropriate citation conventions, and still violate the source material’s copyright.
Those incorporating copyrighted material into commercially available projects can fall under the Fair Use doctrine if they follow all of the rules, but historically they have had a more difficult time securing that protection because the new project has the potential to affect the original material’s market impact, which we will be looking at in another post. If the creator can prove that they are using a copyrighted material in a transformative manner that conforms to the Fair Use criteria, then they do have a chance of gaining that protection.