Fair Use: Considering the Differences Between English and Legalese
You have probably heard recent references to the term "fair use." With all of the publicity about unauthorized copying of videos and music, the term is used by people asserting different positions to buttress their own case. But what does the phrase "fair use" really mean?
Well, if we are speaking ordinary English, it probably means a use that is not too little and not too much, but, as Goldilocks would say, "Is just right." However, that kind of understanding does not work in the legal worlds of copyrights or trademarks. So here is little primer on what the phrase means in each area and under what circumstances you may be able to make "fair use" of the materials.
To own the copyright in a work means that you have exclusive rights over its use for an extended period of time. However, without some kinds of exceptions, no one could use any part of a copyright protected work unless they had the owner's permission. That would prevent valuable uses to society such as for criticism, news reporting, research, and teaching. From the beginning, courts built into the law of copyright the concept of "fair use." Later, Congress codified this legal limitation on the scope of a copyright owner's rights.
So, if you are considering downloading a song or using someone else's work as the basis for a work that you want to develop, ask yourself the following questions: What is the reason you are making use of the copyrighted work? Are you going to get some economic benefit from what you borrow? Are you going to borrow from an artistic or inventive work or will the source be of a less creative nature? Will you be incorporating a small or large portion of the work? Will your use of the work lessen the chance that the copyright owner can make money from her work? All of these questions go into the answer of how much you may use of someone else's copyrighted work for it to be considered a "fair use."
Trademark law also refers to 'fair use" but its meaning of the phrase is quite different. As you know, the owner of a trademark has the exclusive right to use her mark in connection with her goods or services. If someone else were to use that mark without permission, it could cause the public to be confused as to who really was responsible for the goods or services they bought. However, as with copyright law, there are good reasons why the owner's rights should be limited.
Under certain circumstances, trademark law allows people to use the marks owned by another in their own advertising or promotional materials. Because marks typically are made up of words, if someone in good faith needs to use a word or phrase that happens to appear in someone else's mark to describe their own product or service, under the fair use doctrine, they are allowed to do it. Notice that I italicized the word "describe." This is because in order not to be guilty of infringement, if you use a word or phrase that can be said to come from the trademark of another, you must be using it in a way to characterize your own goods or services, and not trading off of the good will of someone else's mark.
