Copyright is a form of intellectual property protection that gives the creators of original literary, dramatic, musical, and artistic “works” – including comic books, novels, poems, plays, choreography, musical compositions, paintings, photographs, architecture, software, databases, technical plans, and maps – the exclusive legal right to control if and how other people copy, adapt, distribute, display, and broadcast those works.

However, the ability of the creator (or other copyright holder) to assert that control isn’t absolute. Why? Because important exceptions exist. The most famous of these exceptions is known as the “fair use” exception. (The “fair use” exception is encoded in law in Section 107 of the United States Copyright Act of 1976.)

The “fair use” exception

What the “fair use” exception allows is for people to copy, adapt, distribute, display, and/or broadcast other people’s works – without their permission – for the purposes of criticism, parody, commentary, scholarship, research, teaching, news reporting, and search engines. Four factors are considered (and “balanced” against one another) in order to determine whether a particular use of a copyrighted work is “fair”:

1. the nature and purpose of the use of the copyrighted work: uses that are most likely to be considered “fair” include educational and other non-commercial uses and commercial (for-profit) uses that use the copyrighted work in a “transformational” way by adding or doing something that is truly new and unique

2. the nature of the copyrighted work itself: uses that are most likely to be considered “fair” include those that use a copyrighted work that was produced mostly through “fact-gathering” (as with a technical study or news report) rather than through true “creativity” (as with a novel or song)

3. the amount and substantiality of the portion of the copyrighted work that is used in relation to the copyrighted work as a whole: uses that are most likely to be considered “fair” include those that use only a small or marginal portion of the copyrighted work

4. the likely effect of the use of the copyrighted work on the potential market for or value of the copyrighted work: uses that are most likely to be considered “fair” include those with the least potential to hurt the commercial market for (sales of) the copyrighted work

“Fair use” is determined on a case-by-case basis – when a copyright holder sues an unauthorized user for copyright infringement.

Copyright infringement (a.k.a. “piracy”)

Copyright infringement – often also known as “piracy” – is the unauthorized copying, adapting, distributing, displaying, and/or broadcasting of a protected literary, dramatic, musical, or artistic “work” in a way that doesn’t satisfy the requirements of “fair use” or any other exception to copyright.

Copyright infringement can result in both criminal and civil penalties. Criminal penalties may include a fine of up to $500,000 and/or imprisonment for up to 5 years for a first offense and a fine of up to $1 million and/or imprisonment for up to 10 years for repeated offenses. Civil penalties may include injunctions (through which the court prohibits the copyright infringer from continuing to copy, adapt, distribute, display, and/or broadcast the work); seizures (through which the court orders the impoundment of all copyright-infringing materials and related equipment); and monetary damages (through which the court makes the copyright infringer pay the copyright holder the equivalent of the copyright holder’s actual financial losses and lost profits).