As we’ve previously mentioned, the main test to determine what constitutes "fair use" is the 4-factor balancing test. In other words, there are no hard and fast rules. Courts must balance at least 4 different factors to determine whether the use of copyrighted material by someone other than the owner was done "fairly." The test is very fact specific and a small change in the facts could change the outcome. Let’s go over an example to see how this might work.

Assume Henry just wrote a brand new novel called, The Future of Outer Space. Henry spent 2 years of his life writing this novel and gave up his job to do so (while eating a lot of cheap Roman Noodle soup to get by). After completing the novel, Henry found a writing agent, signed a book contract with a local publishing company, and posted a few excerpts of the novel on his website on the internet. Henry then when out on the road and traveled to coffee shops, book clubs, and all kinds of other events throughout the United States to promote his new book. Henry even had to pay for some of the traveling expenses. People finally began to take notice of Henry’s novel, and within a few months The Future of Outer Space made the NY Times Bestseller List. Henry was finally starting to make some money.

Lots of people liked Henry’s ideas about outer space and many people began quoting or paraphrasing different parts of the book on the news, radio, in classrooms, and all kinds of other settings. Many people just copied and pasted Harry’s book excepts from his website. Ok, STOP!

As soon as people start quoting and copying and pasting Henry’s material, would this be allowed under copyright law? In other words, could Henry sue someone who quoted and/or copied and pasted his material? Answer: It depends.

It depends on how the court would view the 4 factors in the balancing test. So, a separate legal analysis would have to be applied for each and every person that used Henry’s material from his novel if Henry sued everyone that used his material.

In the real world, Henry would likely not sue anyone, unless that individual was making money, gaining notoriety, or somehow benefiting from all of Henry’s hard work without Henry getting any credit. For example, assume that Bill innocently believed that he could copy and past some of the excerpts from Henry’s book on Bill’s website. Then, because of the excepts Bill put on his website he was able to get a lot of web traffic and began to make more money off of advertising. Here, Henry could sue Bill for copyright infringement with possible damages of up to $150,000 per violation! So, as you can see, people should be very cautious about using copyrighted materials without the owner’s consent.

Finally, let’s wrap up this article with some main thoughts to keep in mind.