One of the most common defenses against copyright violation in Texas is that of “fair use” doctrine. For businesses concerned about the safety and integrity of their intellectual property, it may be helpful to understand fair use, when it applies and what factors qualify under the law. 

As the Texas State Bar explains, fair use doctrine relates only to copyrighted works (and not to other intellectual property), and it protects educators, entertainers, news media and similar entities from unreasonable lawsuits. 

Copyright concepts

As opposed to other forms of intellectual property, copyright law protects “original works of authorship that are fixed in a tangible form of expression.” In other words, one cannot copyright a concept or idea as he or she would a patent. Copyright applies to “expressions” in some medium, such as a written work or a recorded song, and not to underlying ideas. 

Copyrighted works must contain at least some element of human creativity. In the U.S., copyright law automatically protects such works without the need for additional legal measures. 

Fair use doctrine

There are some uses of copyrighted works that may be acceptable without the need for express permission. Fair use doctrine protects certain entities who would use the work for social good that outweighs the importance of profitability. For example, teachers may reprint literary text for their classrooms, comedians may parody a commercial jingle or news media may replay copyrighted footage under some conditions. 

According to the US Copyright Office, over time, committees, legal experts and case law have attempted to establish guidelines to help clarify fair use. These guidelines include rules saying that using less than 10% of the work should be acceptable or using a single chapter or excerpt so long as it does not contain the heart or essential portion of the work. Another guideline suggests that the use must be spontaneous — meaning that its use did not warrant sufficient time to obtain copyright permission from the author. While these guidelines can be helpful, they are not hard and fast rules. 

Fair use in court

Courts will determine fair use on a case-by-case basis considering the reasonableness of the use. In deciding, a judge will consider several factors. He or she will consider the nature of the work itself and the portion of it the individual used, the purpose of the use and the potential effect its use may have had on the work’s profitability. 

There is no existing legal definition of fair use to date, so courts will base their rulings on these factors, giving preference to educational and nonprofit use, and giving preference to uses that do not impact the potential profit the copyright owner could have made.