The High-touch Legal Services® Blog • For Startup Companies

“Fair use” is a legal term that does not necessarily mean what people often assumes it means (a free pass to use other people’s intellectual property). Indeed, the term has two different meanings, depending on whether copyrights or trademarks are at issue.

Copyright

Copyright protects works of authorship – see Copyright Protection in One Easy Lesson. The copyright owner has the  exclusive right (as applicable) to reproduce, distribute, publicly perform, publicly display, and make derivative works of the copyrighted work.

Copyright infringement is the unauthorized exercise of one of the exclusive rights by someone other than the copyright owner. Thus, for example unauthorized copying of someone else’s music or movie constitutes copyright infringement.

The fair use defense to copyright infringement, set forth in 17 U.S.C. Section 107, is designed to protect such activities as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 specifies that the determination of whether the use made of a work in any particular case is a fair use will be based on the following factors:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

There are no mechanical rules for determining how the four factors will be applied – each case must be decided on its own merits. For example, reproduction of a short poem in its entirety may constitute fair use in an article by a literary critic, while reproduction of that same poem solely for circulation among fans of the poet likely would not constitute fair use.

Trademark

A trademark or service mark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of goods (trademark) or services (service mark) – see Trademark Protection in One Easy Lesson. (Throughout the remainder of this post, the term “trademark” is intended to include service mark, as well.)

Unauthorized use of a trademark or a confusingly similar mark by someone other than the trademark owner may constitute trademark infringement. For example, there are many federal trademark registrations for “COCA-COLA”. Unauthorized use of that trademark by anyone other than the trademark owner would constitute trademark  infringement.

The fair use defense to trademark infringement is intended to protect reasonable, good faith use as a term that describes a good or service rather than as a mark, per se  – see, e.g., 15 U.S.C. Section 1115(b)(4). For example, while Kellogg has a trademark registration for “ALL-BRAN” dating back to 1923, another company may truthfully refer to its cereal as containing “all bran” without concern about infringing Kellogg’s trademark.

As with copyright fair use, there are no mechanical rules for determining trademark fair use – each case must be decided on its own specific facts.

This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.