How to Make Smart Fair-Use Decisions: Learn the Law and Apply the Examples

July 2006
by Lee Wilson

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Lawyer Lee Wilson has written several books on intellectual-property law, including The Copyright Guide: A Friendly Guide to Protecting and Profiting from Copyrights, and Fair Use, Free Use, and Use By Permission: How to Handle Copyrights in All Media, both published by Allworth Press. She lives and works in Nashville.


As the recent furor over Google’s digitization project indicates, the application of the law regarding “fair use” of copyrights depends greatly on the specific facts in any situation. In fact, two situations that are identical except for one circumstance may lead to opposite results, with one amounting to fair use of a copyrighted work while the other constitutes infringement.

Usually, dealing with questions of copyright infringement means involving lawyers. And those lawyers almost always charge high fees ($175 to $400 or more per hour) to evaluate the circumstances surrounding a claimed infringement. This means that even being accused of infringement can be expensive.

One of the best ways to avoid infringement claims is to educate yourself. It’s not too hard to decide correctly when you need permission to use a copyrighted work, especially if you begin the fair-use analysis with respect for the copyright rights of others. The tools you’ll need are information about the length of copyright protection (see “Is It in the Public Domain?” below) and about how the copyright law defines fair use (see below, §107), plus a grasp of the way lawyers think through fair-use questions, which the examples below will demonstrate.

The Four Key Questions

The factors that courts must consider in determining whether the u…IBPA Members – Click here to view the full article (login required).

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