Fair use is a limitation on the right of copyright. A use which is considered fair does not infringe copyright, even if it involves one of the exclusive rights of copyright holders. Fair use permits people to make a copy of part or all of a copyrighted work, even though the copyright holder has not given permission or objects to the use of the work. It’s a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist's work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work.

Fair use is often found to be: quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported

Most fair use analysis falls into two categories: commentary and criticism; or parody. For comment and criticism: If you are commenting upon or critiquing a copyrighted work--for instance, writing a book review -- fair use principles allow you to reproduce some of the work to achieve your purposes. The underlying rationale of this rule is that the public benefits from your review, which is enhanced by including some of the copyrighted material.

A parody is a work that ridicules another, usually a well-known work, by imitating it in a comic way. Judges understand that by its nature, parody demands some taking from the original work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to "conjure up" the original.

There are no clear-cut rules for deciding what's fair use and there are no "automatic" classes of fair uses. The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

Fair use is decided by a judge, on a case by case basis, after balancing four factors:
1. The purpose and character of the use
2. The nature of the copyrighted work
3. The amount and substantiality
4. The effect of the use upon the potential market

Courts have previously found that a use was fair where the use of the copyrighted work benefited society. Generally, this includes criticism, comment, news reporting, teaching, scholarship, research and parodies.
The fact that a work is unpublished doesn't mean that you can’t have copyright protection.

You need to look at the nature and what parts of the work have been used, the quantity and value of the materials used, and the effect that it will have on the sale of the original work or diminish the profits.

Fair use is often used as a defense to copyright infringement. In order to use it as a defense, the defendant has the burden of raising and proving that his use was "fair" and not an infringement. So the defendant doesn't need to raise the defense until the plaintiff shows that there is a case of copyright infringement. So if the work was not copyright able, the term had expired, or the defendant's work borrowed only a small amount, for instance, then the plaintiff cannot make out a case of infringement, and the defendant need not even raise the fair use defense.

The information provided in this article is not legal advice and no attorney-client or confidential relationship is or should be formed by use of this article.