Fair Use Guidance for Small Business Owners

As a small business owner, navigating the numerous complex legal requirements can be overwhelming. Copyright laws especially affect small business owners every day as they attempt to create social media posts and other digital content, and others attempt to copy their content. Fair use laws are only one of the many considerations to analyze when using other people’s works in your content.

Copyright Protections for Your Intellectual Property

Accordingly, Title 17 of the U.S. Code allows individuals or businesses to copyright their intellectual property, but what exactly can be protected? In general, the following creative works can receive copyright protection:

• Songs, music, and other sound recordings
• Works of literature
• Movies and audiovisual productions
• Dances, choreography, and pantomimes
• Sculptures, paintings, and graphic works
• Architectural designs

Additional protection for small business owners may be available for certain other intellectual property like slogans, names, and ideas through trademark protection.

If you choose to have your intellectual property protected by copyright, you can distribute, display, perform, reproduce, or make derivatives of your work; the copyright protection would extend to these activities. Thus, any person attempting to use your work to create social media content would be infringing on your work.

What is Fair Use?

Fair use is a statutory doctrine included in intellectual property law that deals with copyright protection. 17 U.S.C. § 107. For instance, someone uses your intellectual property without authorization. In that case, they may try to apply fair use as a defense to the alleged infringement, and this could be a valid defensive claim if the use falls within specific criteria.

The courts look at the following factors to consider when determining if use could be considered fair use are as follows:

• What was the purpose and character behind the usage?
• Is the intellectual property that was used factual, creative, or of a different nature?
• How much of the protected work was used? And was that portion a substantial amount of the copyrighted work?
• Did the unauthorized use impact your protected work’s potential market?

Fair use is considered a subjective or gray area of law because the law only provides basic guidelines, so decisions on fair use are made on an individual basis based on the facts of each case.

Fair Use of Your Protected Works

So, how do you know if someone else’s use of your copyrighted material qualifies as fair use? Consulting with an attorney is the best way to ensure the use of your copyrighted material falls within the parameters of fair use and that no infringement has occurred. However, some general guidelines can potentially help you decide if legal action is necessary. Fair use laws, in general, allow others to use your copyrighted material without authorization in the following scenarios:

• They are criticizing or reviewing the work
• They are commenting or reporting on the work
• They are using the work to teach or educate
• They are using the work for scholarly research
• They are making a parody of the work

Please note, typically, even these allowed uses only grant permission to use your copyrighted work in portions or excerpts. Fair use does not allow an entire piece of copyrighted intellectual property to be used without permission. Users are only allowed to quote, summarize, or make classroom copies under fair use.

If you still have questions about fair use and intellectual property copyright protection, contact the attorneys at EmergeCounsel for guidance. We have helped many clients navigate the unauthorized use of their copyrighted materials, and we are happy to discuss your IP issues during a free consultation. Schedule your appointment today to get the copyright guidance you need.