Fair Use

August 1998
by Ivan Hoffman, B.A., J.D.
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Ivan HoffmanIvan Hoffman (photo right) is a publishing, copyright, Internet law, recording, and music attorney as well as a published writer and author. He practices in the Los Angeles area. You may reach him at ivan@ivanhoffman.com or 818/342-1762.


Don’t you hate it when attorneys say, “Well, it depends…”? As publishers, authors, and other creators of intellectual property, and as users of such property, we would like to have certainty when we use protected material. When we decide we want to use some portion of another person’s creative works, either in the hard copy world or on a Web site, or to copy and paste it into an e-mail or post it to a newsgroup, the question arises: “Do I need permission to do this or is the use ‘fair use’ and therefore may I use it without permission?”

It is a reality that perhaps no issue creates more uncertainty in the copyright law than that of “fair use.” Its interpretation is vague and meaning unclear enough to, in the words of a cliché, “drive a truck through.” I realize that this makes “fair use” somewhat unfair but that’s the way it is. The copyright law itself recognizes several statutory categories of fair use, but unless the use falls within those categories, and even if it does, the best approach is to seek written permission before using the material. And the reason this is the best approach is because no one-not a lawyer, not a publisher, not even a judge or jury-can tell you in advance whether a given use is going to be held as “fair.” The standards used for determining such use only come into play when there is a litigation, since fair use is a defense to a claim of infringement.

Therefore, any reliance upon the doctrine before such determina…IBPA Members – Click here to view the full article (login required).

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