Fair use exemptions are not explicitly provided in U.S. copyright law - rather, the law sets up a set of criteria that are to be used in determining whether a specific use is likely to significantly impact the value of copyrighted material. Specifically, courts are asked to consider:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
- Dealing for commercial purposes may be fair.
- Commercial use does not nullify fair use.
- The availability of a license is irrelevant in considering alternatives to the deal.
- It is not advisable to circumvent the underlying work, it is much better to transform, summarize and/or add to the underlying work.
- A plaintiff must bring evidence of any detrimental impact upon the market for its work if it wishes to have it considered. After all, to quote a CBS executive: “3 minutes of a Beyonce song might potentially hurt an entire album of Beyonce, but two minutes of ‘CSI' might be the greatest thing that could ever to the 44 minutes of ‘CSI’ that we put out weeknight on [CBS] or our affiliate partners.”
Source - Fair-Use Cases That Have Shaped Copyright Law, OnlineVideoInsider
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