Avoiding Copyright Litigation: As The Number of Copyright Lawsuits Continue to Rise, Here is What You Need to Know in Order to Avoid Getting Sued.

The last thing you need is to find yourself on the receiving end of a copyright infringement threat letter or, worse, a copyright infringement lawsuit.

The primary defense to copyright infringement is “fair use” – a doctrine under copyright law which allows you to republish someone else’s copyright protected work without permission.  Typically, your use of the copyright protected work must be “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.”  Fair use applies to all copyright works including books, articles, art work, music, web pages and other copyright forms. 

Of course, the best way to avoid a problem is to get the copyright holders permission prior to publishing their work.  If you cannot get an author’s permission, you need to change the work in such a way so that you are expressing your own thoughts, ideas or artistic expression.

One of the other factors which is often misunderstood in copyright law relates to how much of the copyright holders work someone uses.  If you use a large segment of someone else’s copyright protected expression, you are more likely to be infringing.  If you use only a small portion of the copyright protected work, your risk of being sued for copyright infringement is less.

However, no use is presumptively "fair." Courts examine four factors in deciding whether a specific use is a "fair use":

• The purpose and character of the use, including whether the use is commercial or of a non-profit, educational nature.
• The nature of the copyrighted work. Uses of expressive, as opposed to factual, works are less likely to be considered fair uses, as are uses of unpublished works.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Here the court will consider the qualitative as well as the quantitative use. If the user excerpts 200 words from a 10,000-word book, but those 200 words constitute the heart of the book, this may not qualify as fair use.
• The effect of the use upon the potential market for or value of the copyrighted work. If the challenged use adversely affects the potential market for the copyrighted work, the use is not fair.