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Is It Ever Okay to Use a Copyrighted Work Without Permission?

Tue Nov 9th, 2021 by  Copyrights

If you have ever celebrated your birthday at a restaurant, you’ve probably wondered why restaurant staff use their own, in-house birthday song rather than the standard “Happy Birthday to You” used in private settings. This is because the song “Happy Birthday to You” was covered by a copyright (until 2016, at least), and a public performance of it could expose the singers to copyright infringement suits. This scenario illustrates the general principle that the unauthorized use of copyrighted work constitutes infringement. However, not all unauthorized use of copyrighted works will subject the user to an infringement lawsuit. If you have been accused of copyright infringement, an Alabama IP litigation attorney can help you defend yourself. 

Copyright Infringement Generally 

Copyrights protect original works of authorship, including literary works, pictorial works, sculptures, sound recordings, acts of choreography, motion pictures, and architectural works, among others. Copyrights arise automatically — that is, a work is protected by copyright as soon as the author creates it (unlike patent protection, which requires a grant of rights from the government). Copyright protection confers the right to reproduce the copyrighted work, the right to prepare derivative works, the right to distribute the work, the right to perform the work, and the right to display the work. Copyright infringement occurs when a person who is not the holder of the copyright does one of these things without the copyright holder’s permission. For example, using a copyrighted image on your company website without the holder’s permission would constitute copyright infringement. 

Exceptions to Copyright Infringement — The Fair Use Doctrine 

Not all unauthorized uses of copyrighted works constitute copyright infringement. To promote freedom of expression, the Fair Use Doctrine allows for the unauthorized use of copyrighted works for the purposes of criticism, comment, news reporting, teaching, scholarship, and research. To determine whether a particular use constitutes “fair use,” courts look to the following factors: 

  1. The purpose and character of the use: Generally, courts are more willing to find that noncommercial uses (such as by a nonprofit or in an educational setting) are fair use. Transformative uses — those that add something new to the work — are also more likely to be considered fair.  
  2. The nature of the copyrighted work: Use of works that are highly creative (such as books, movies, and songs) are less likely to be found fair than the use of less creative works (such as technical works or news articles).
  3. The amount and substantiality of the portion used: Use is more likely to be considered fair where the user uses only a small amount of copyrighted material than when he or she uses a large amount of it. 
  4. The effect of the use on the value of the copyrighted work: Courts consider whether the unauthorized use is likely to have a detrimental effect on the value or future market of the copyrighted work (such as by displacing sales). 

Whether a particular use constitutes fair use is intensely fact-specific and is determined by the courts on a case-by-case basis. 

Contact an Alabama IP Litigation Attorney if You Have Been Sued for Copyright Infringement

If you have been sued for copyright infringement, you may have a fair use defense. For more information, please contact an Alabama IP litigation attorney at AdamsIP by calling 251-289-9787 or by using our online contact form.