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What Exactly Is "Fair Use"?

Posted by attorney Bruce Burdick

Fair use is NOT exact, so there is no way to tell you "exactly" what it is. It's a judgment call to be made by a Judge based on comparison of your facts with the statute 17 USC 107 [] What an attorney CAN do, however, is review your facts and give you an opinion, based on analyzing what courts have done on similar facts and based on knowledge of the law. Generally the more like a news commentary, review, satire, classroom lesson, or political discussion, the more likely it's fair use. The more commercial, the less likely it's fair use. The more of the original you use, the less likely it's fair use. If you are SNL doing spoofs, you can get away with a lot. If you are selling commercial copies without much change or comment, you can't get away with much. There are also two types of "fair use". Most people think of copyright fair use, which I just discussed. There is also "trademark fair use", which allows you to make descriptive use in ordinary generic fashion of a common word, even if a trademark, to use a trademark for purposes of criticism or commentary. For example "I think I'll Chevy on over to the game in my Ford" or "I like DIET COKE better than DIET PEPSI". That is, you can use a trademark to refer to the product of the trademark owner bearing that trademark. For example you can say " I have COKE or PEPSI for sale in my concession stand." [So long as they are, in fact, actually those brands and not some generic alternative.] See 15 USC 1125(c)(3) f When addressing "fair use" issues, advice of an experience IP attorney is invaluable. Do it in confidential communications with that attorney after hiring that attorney, not here on a public forum. Avvo is for finding that lawyer, not for spilling your secrets for all to see.

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