Fair Use – a legal fairy tale

After reading a ton of books and articles about copyright and fair use I honestly think that the Fair Use Principle (also: Fair Use Doctrine) is a bogus myth, even though its legally established, but yet not transformed into law.

Let’s take a qick look into copyrights. As soon as a piece of music is on paper, tape or any other physical medium the artists and his/her piece is protected by copyright laws. 

In real life you need to be able to proof every claim you stake. Therefore, if you want to ensure you enjoy the full extent of legal protection, you will register your song with the Copyright Registration Office of your country.

Copyrights contain the rights to

  1. reproduce and copy
  2. distribute
  3. create “derivative” works of as well as
  4. perform the piece publicly
  5. use for synchronization
  6. use for transcription
  7. print the piece
  8. license your work.

The Fair Use Principle gives us an exception to the rule. The only execption it can’t make is to No. 8. You will never be allowed to licence somebody elses work on the basis of Fair Use.

As stated in Section 107 of the Copyright Act of 1978 the four factors that have to be taken into consideration when “determining whether the use made of a work in any particular case is a fair use [are]:

(1) the purpose and character of the use, including whether such use is of a

commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the

copyrighted work as a “whole“ and

(4) the effect of the use upon the potential market for or value of the

copyrighted work.

Let’s try to keep this short. The IUPUI Copyright Management Center drafted a Fair Use Checklist that has been revised by Cornell University.

Download the Fair Use Checklist here for free!

It gives you a two-sheet decision maker wether you are in favor of the fair use principle or not. I strongly recommend at least reading this checklist!

 If you’re still reading this, let me tell you one thing:You can never be sure.

Even there’s a tremendous amount of books and other publications written on this topic, there is only ONE thing that can give you certainty if your use of copyrighted material is considered fair or not. Even if you come to an agreement with the copyright holde before a lawsuit, you don’t have certainty.

The only thing that can give that to you would be a court decision. And again the results coming from those kind of law suits are as diverse as the people who have to make the judgment.

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