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Fair Use in Intellectual Property

When a person creates an original work of authorship, an invention, a brand with a logo, or a recipe, U.S. law protects the individual’s interest in his or her work to the exclusion of all others. Intellectual property laws across the globe have historically given broad rights with respect to inventions, original works, etc…, to create an incentive for artists to continue to create.

On the other hand, the law recognizes the value of sharing information for educational purposes, for further invention, and for criticism. This is where the Fair Use doctrine applies. Fair use refers to copying, that would otherwise be illegal, done for limited purposes such as educational, or parody.

Fair use is a defense to an allegation of intellectual property infringement. The burden is on the accused to show that his or her use of the intellectual property was a protected use.

Attorney for Fair Use of Intellectual Property in Houston, TX

If you or someone you know has been accused of intellectual property infringement and your only use of such property was for informational or educational purposes, contact an experienced intellectual property attorney in Harris County, Texas.

Fair use is a doctrine that protects a limited use of an original work. If you think that your work or invention has been infringed upon unlawfully, contact Sydow Law Firm. Our office protects the rights of individuals in intellectual property. We take cases throughout the greater Houston metropolitan area in Fort Bend, Galveston County and Harris County in Texas.

Call Sydow Law Firm at (713) 622-9700 to schedule a consultation.


Texas Fair Use Information Center


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What is Fair Use

Fair use is found in Section 107 of the Copyright Act of 1976. According to the Statute, the fair use of a copyrighted work, including reproducing copies for purposes such as criticism, news reporting, comment, teaching, research, or scholarship, is not considered an infringement of a copyright.

Thus, if a person is reproducing a work for the purposes listed above, then he or she will not be liable under an infringement claim. If a person uses a work for fair use at first and then later attempts to profit from such work or failed to give proper credit to the author, then he or she could be subject to a copyright infringement claim.


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Elements of Fair Use under Title 17 U.S.C. § 107

There are certain types of use that bar a person from being held liable for infringement for copying a work. In order to show that an individual’s use of a work constituted fair use, he or she must show the following:

  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 work –whether it was published or fact-based;
  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 a number of theories that fair use is based on:

  • Implied Consent
  • Creative Utility
  • Social Utility
  • Economic Efficiency

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Harper Row Publishers Inc., v. Nation 471 U.S. 539

Much of the theory of fair use was introduced in Harper Row Publishers Inc., v. Nation Enterprises, 471 U.S. 539 (1985). After leaving the White House, former President Ford contracted with Harper Row to allow it to publish his unwritten memoir. From this case, the Court fleshed out the fair use doctrine.

Thus, fair use when appropriately applied is limited to copying by others that does not materially impair the original owner’s ability to market the work that was copied. Further, the Court said that for an owner to negate fair use, he or she must to show that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work.


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Additional Resources

Oyez – Visit Oyez.Org, created by Cornell’s Legal Information Institute, Chicago-Kent College of Law, and Justia, and is a multimedia archive of the U.S. Supreme Court, including written decisions, summaries, and audio oral arguments of many landmark decisions.

What is Fair Use – Visit Stanford University Library website for a full analysis of the definition of fair use in U.S. copyright law. The site discusses the various types of fair use including criticism and commentary, and parody.

The U.S. Copyright Office Fair Use Index – The United States Copyright Office was created by Congress in 1897 as a separate federal department within the Library of Congress. The Copyright Office is responsible for overseeing and administering a complex and dynamic set of laws, including recording titles and licenses, among other duties. The Office of Register in support of the 2013 Joint Strategic Plan on Intellectual Property Enforcement, created the Fair Use index to track a variety of judicial decisions to assist lawyers and judges understand the ways in which the courts have dealt with fair use. The index covers multiple jurisdictions including the United States Supreme Court.


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Find a Lawyer for Fair Use in Harris County, Texas

If you or someone you know has been accused of infringing on another person’s original work of authorship, or other intellectual property, contact Sydow Law Firm. Our experienced intellectual property attorney, Michael D. Sydow, fully understands how fair use applies in intellectual property cases today.

He knows when a specified use can be considered fair under Section 107 of the Copyright Act, and when someone’s use may be considered infringement. As founder and owner of Sydow Law Firm, attorney Sydow prides himself on protecting the rights of individuals in intellectual property.

Sydow Law Firm accepts cases in Harris County, Texas and in other areas throughout the greater Houston metropolitan area, in places like Galveston County, and Fort Bend, TX. Call (713) 622-9700 today to learn more about fair use in an intellectual property infringement claim.


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