Arthur R. Lehman, L.L.C.

What is the fair use doctrine?

The best way to capture someone's attention may be by showing them a picture; after all, a picture's worth a thousand words. But what happens when a New York resident is reviewing someone else's products or company online and wants to use a picture of the product, or the company's logo and doesn't have permission to do so?

The first question that may arise is whether a person really needs permission to use an image online. The truth of the matter is that as soon as an original piece of work is created, a copyright is created in that work whether it is registered or not. The copyright owner has the right to reproduce, display, and distribute copies of the copyrighted work, among other rights deriving from intellectual property law. So where does this leave the reviewer who wants to use an image of the copyrighted work as part of his or her article?

It could possibly leave them within the exclusion of 'fair use.' This is a legal exception that allows someone to use a copyrighted work without the express permission of the author of the work. Under the fair use doctrine, the copyrighted work can be used in a limited and reasonable manner as long as the owner's rights are not interfered with or impeded. In order to determine if the copyright is being infringed under this doctrine, the court looks at the character and purpose of the use first,including whether the use is for commercial use or non-profit educational uses.

However, intellectual property litigation is a complex matter and despite arguing fair use, it is possible that the copyright is infringed, either because of the purpose in using it, or the way in which it was used. When a New York business owner's copyright is infringed, he or she may wish to consider consulting an experienced attorney who can determine if it was fair use or not.

Source: Social Media Examiner, "Copyright fair use and how it works for online images," Sara Hawkins, Nov. 23, 2011

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