The Copyright Act grants copyright owners a bundle of exclusive rights in their works of authorship, but balances those rights with certain limitations (see Practice Note, Copyright: Overview: Exclusive Rights and Statutory Exceptions). The fair use doctrine, codified in Section 107 of the Copyright Act, is one of these limitations. It allows persons other than the copyright owner and its licensees to make certain uses a copyrighted work without the copyright owner's authorization (17 U.S.C. § 107). The doctrine attempts to advance society's interest in having widespread access to works of authorship while preserving copyright owners' legitimate desire to control and benefit from the use of their works.

Section 107 sets out a non-exhaustive list of purposes for which a use of a copyrighted work may be fair, including uses for:

However, rather than establishing bright line rules, Section 107 sets out four non-exhaustive factors to help guide courts in determining whether a particular use is fair:

An in-depth understanding of the copyright fair use doctrine is critical when advising clients on copyright matters. Clients planning to use copyrighted works often want to know whether they can rely on fair use instead of seeking permission from the copyright owner. Copyright litigants also must assess whether a fair use defense may defeat certain claims. However, counseling on fair use can be challenging because the inquiry is subjective and no bright line test exists. In addition, developments in technology allowing new uses and ways of modifying and distributing copyrighted works continue to raise novel questions. For example, recent fair use decisions in the academic context involve certain universities' unlicensed mass digitization of copyrighted works for the HathiTrust Digital Library (see Legal Update, Universities Mass Book Digitization Project is Fair Use: SDNY) and the unlicensed use of copyrighted excerpts on a university's electronic course reading system (see Legal Update, District Court Rules on University's Use of Copyrighted Material in E-Reserve System).

For a deeper look at the fair use analysis and practical considerations in counseling on and litigating fair use, see Practice Note, Copyright Fair Use. This Practice Note was contributed by Jeffrey P. Cunard, Bruce P. Keller and Michael Potenza of Debevoise & Plimpton LLP and discusses: