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Intellectual Property and Fair Use Principles

In general, intellectual property, includes, copyright, trademarks, and patents (collectively “IP”).  According to the World Intellectual Property Organization, IP refers to creations of the mind, such as inventions, literary and artistic works, designs, and symbols, names and images used in commerce. Now, when it comes to the use of intellectual property, what is considered fair use?

What is fair use and how does it affect intellectual property right?

There are multiple ways to protect or claim your intellectual property. When an individual believes that its intellectual property has been misappropriated (i.e., taken without consent), it has the right to demand that it be removed or notify the hosting organization about the infringement, so that they can remove it. The services of a lawyer should be obtained if any of these steps fail. However, before any of these steps are taken, the Digital Millennium Copyright Act (“DMCA”), which is codified under 17 U.S.C. section 512, recommends that the individual making the claim considers whether the use of their intellectual property is fair use. Fair use is defined under 17 U.S.C. § 107, where it states that copyrighted material may be used so long as it is for “criticism, comment, news reporting, teaching, . . . scholarship, or research” and it will not be considered an infringement of the copyright. The following factors are evaluated to determine fair use: (1) purpose and character of use; (2) nature or type of work used; (3) amount of the work used; and (4) effect using the copyrighted work will have on its use for the author or creator. When deciding whether to demand removal, redaction, or whether to pursue a legal case alleging misappropriation, individuals should be aware of their legal rights and relevant factors.

What happened in Lenz v. Universal Music Corporation?

In Lenz v. Universal Music Corporation, the district court addressed how the Digital Millennium Copyright Act requires that copyright holders consider fair use before they make a claim of infringement. In this case, the plaintiff filed a lawsuit against Universal Music Corporation and its subsidiaries for false claims in a takedown notification. By failing to consider fair use principles, a triable issue was raised before the federal court. Before a takedown demand is made, the holder of the copyright must have a subjective good faith belief that the material was taken and used without consent. Misrepresenting that a copyright holder has a good faith belief before issuing a take down notice is a violation.   The summary judgment motion by Universal Music Corporation was denied and plaintiff was allowed to seek damages for its violation. This case acts as a warning for copyright holders to consider fair use principles before issuing takedown notifications. Those with questions regarding their intellectual property rights or those who have received takedown notifications should seek legal assistance.

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