Fair and Enjoyable Use
The legal tabloid blog Above the Law posed the question on Friday whether a video posted on YouTube of a group of young men playing on a beach and lipsyncing to Miley Cyrus’s song “Party in the USA” was a fair use.
As a reminder, fair use is a copyright doctrine by which someone who has infringed a copyright can avoid liability. The doctrine began as common law, but was codified by Congress in 17 U.S.C. § 107. As codified, the doctrine consists of four factors: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use upon the potential market for or the value of the copyrighted work. If a court (or jury) finds that the factors balance in favor of the user of the copyrighted work, the use is not considered an infringement.