THE CURRENT STATE OF THE FAIR USE DEFENSE UNDER THE COPYRIGHT LAWS

摘要

To determine whether a work constitutes fair use, the courts typically engage in a case-by-case analysis using the "flexible balancing" of the four factors established under para 107 of the Copyright Act. The cases discussed above suggest that the courts will continue to resolve fair use defense issues one decision at a time. But the trend clearly seems to be that attempts at parodying the original copyrighted work will be protected, unless the amount of copying destroys the economic value of the copyrighted work. In addition, if the alleged infringer's copy competes in the copyright owner's market, then the fair use defense probably will not protect the defendant. For instance, in the Merkos case, since the defendant's prayer book was so similar to the plaintiff's book and effectively took away some of the plaintiff's sales, the defendant's fair use argument failed. We will continue to monitor these fair use cases and report on them periodically in this newsletter. In the meantime, corporate counsel should be aware of the fact-specific factors that the courts use to determine whether transformative works are protected by the fair use defense.