Copyrights protect works of art or creative expression. The rights are created at the time the work is fixed in a tangible medium of expression. A single copyright provides what is referred to as a “bundle of rights” which include:
the right to use,
the right to make derivative works,
the right to publicly perform the work,
the right to display the work,
the right to transfer rights in the work, and
the right to license or sublicense the work.
Copyrights do not cover all uses of a work. A common example is a parody.
Parody is a potential exception to copyright. Whether a work is a parody is determined by considering multiple factors. A court making such a determination will apply the Fair Use test, weighing the factors altogether.
Fair Use is a defense to copyright infringement claim. Fair use may permit commentary on the work without being subject to the copyright holder’s rights in the work, depending on a court’s determination.
These factors are used to analyze whether a copyrighted work is protected by a Fair Use defense:
(1) the purpose and character of the use, including whether the use is commercially motivated (created for profit) or instead is for nonprofit educational purposes (e.g. criticism, comment, scholarship, research, news report, education);
(2) the nature of the copyrighted work (e.g., unpublished works tend to disfavor “fair use” – and whether the work is informational or for entertainment);
(3) the amount and substantiality of the portion used in the newly created work in relation to the copyrighted work (no “bright line rule” or “percentage rule” applies); and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
No single factor by itself is sufficient to prove or disprove fair use. A court will consider these factors in making a determination as to fair use.