Work For Hire Agreements
What is "Fair Use"?
Fair use is an affirmative defense to copyright infringement, meaning you won’t be held liable for damages if you can prove that you used someone else’s work for purposes of criticism, comment, news reporting, teaching, scholarship, or research. But even citing one of these purposes, doesn’t automatically mean that your use will be considered “fair.” Under copyright law, these are simply “illustrative purposes,” or examples of the types of purposes that lend themselves to a claim of fair use.
The purpose of the fair use doctrine is to permit use of copyrighted material that are considered beneficial to society, not to allow you to make money off of someone else’s work or to use their work to promote yourself. Even relatively small uses of someone else’s work have been found to constitute copyright infringement and not fair use. Contrary to popular belief, there is no hard and fast rule that automatically allows you to use a certain percentage or amount of someone else’s work.
Because the law requires you to prove that your use of someone else’s material was fair, it is still better to seek permission from the copyright owner rather than assume the fair use defense will be successful.
How is Fair Use Determined?
In determining whether your use of someone else’s content is “fair,” the courts ask:
Generally, no one factor will determine whether the defense applies. Instead, the courts typically look at how each factor applies before making a decision. Cases relying on a fair use defense are evaluated on a case-by-case basis, meaning these cases are more expensive and more complicated than you might think.