Copyright Fair Use – Is it or Isn’t it?

As an intellectual property lawyer, I often get questions from clients that have received a cease and desist letter alleging copyright infringement. One important defense to copyright infringement is the “fair use” defense, in which you basically say, “Okay, I copied it, but the use I made of your copyrighted material was legal.” Fair use is a very fact-intensive analysis and you often can’t know whether something was actually fair use or not until a judge or jury makes such a determination after trial. Because most people cannot afford to go the distance to determine the viability of the defense, the defendant who has used the copyrighted material often settles or removes the offending material (if possible) rather than litigate. In order to avoid being accused of copyright infringement altogether, it is helpful to understand the rules of fair use, which are discussed very comprehensively  in this resource from the Stanford University Libraries. I have found it be very useful, particularly the summary of fair use cases in Part C. I have also written earlier on this topic, here and here. I hope you find these  resources to be useful guidance on this complicated and fact-intensive issue, which can otherwise be a complete roll of the dice. And, I hope you are never in the position of having to convince a mad copyright holder that your use was fair.