Creative professionals and businesses that invest in original works, like songs, photographs and written creations, have an interest in protecting their investment of time and/or money in those original works. Unfortunately, after publishing or releasing something to the general public for consumption, there will potentially be reason to worry about copyright infringement.
Other parties may seek to misuse or profit off of the creations produced or owned by an individual or business. Oftentimes, those infringing on the creative rights and intellectual property protections of others will try to claim that their conduct falls under the protections of fair use.
How can those who hold copyright establish whether or not the situation is fair use or infringement?
Review the scope and nature of the infringement
Copyright infringement might involve republishing original works for profit or sampling them without permission. However, sometimes republishing and releasing a sample of someone else’s work is fair use according to federal copyright rules. Scenarios in which the other party engaged in parody or criticism of the original work might constitute fair use. After all, someone analyzing the lyrics of a song or the content of a film would likely need to display or play a bit of the original work to explain their analysis. Referencing the original is a key component of successful parody as well.
However, the extent of the use of the original work is also an important consideration. Playing a 10-second clip of a song might not be copyright infringement, but playing the entire song in the middle of a social media video allegedly critiquing the song might lead to people listening to the song there instead of through monetized channels that would benefit the copyright owner. The intent of the potentially infringing work is also important. The more likely it is for the other party to monetize that creation referencing or sampling the original work, the greater the possibility that the copyright holder could argue that their actions infringed on their rights.
There is a fine line between fair use and infringement
The average individual may have a hard time properly analyzing a scenario to determine whether copyright infringement occurred or not if they are not legally trained, especially when they are a creative professional who may have an emotional attachment to the works that they produced. However, seeking legal guidance can help businesses and creative professionals push back against misappropriation of their works by other parties.