The Problem With The Fair Use Defense To Copyright Law

Copyright law is perhaps the single most contested legal subject on the web. Unfortunately, most people only have a passing understanding of the legal concept and the defenses to it. The defense of “fair use” is particularly misunderstood.

Fair Use

Fair use is a phrase thrown around on the copyright legal battlefield by people who, frankly, rarely understand what they are talking about. The idea behind fair use is copyright law should not be used to put a damper on free speech.

As I write this, we are slogging through one of the least inspiring presidential campaigns in our history. What if I was to get fired up and write a post criticizing President Obama for something he wrote in one of his books? If I was to include excerpts from the book in my criticism, wouldn’t I be violating his copyright?

The answer is no. I would be using the content for a non-commercial purpose and to make a political point. Political speech is perhaps the most protected classification of speech under the First Amendment of the Constitution. The fact I wouldn’t be using it for commercial speech makes my case all the stronger.

Most commentators discussing fair use understand and convey this element of the concept correctly. The problem is they fail to mention one small tidbit that can lead to ruin for a person claiming fair use as a defense to a copyright infringement claim.


“The concept of fair use is a defense to a copyright infringement claim.”

This true statement carries far more significance than you might realize. A more appropriate way to make the statement might be to add a bit of emphasis:

“The concept of fair use is a defense to a copyright infringement claim.”

This emphasis is incredibly important. Why? One can only claim fair use as a defense to a copyright infringement claim during a lawsuit. A judge will determine whether the fair use claim is valid by weighing a number of factors. Put another way, you only know if fair use is an acceptable defense to the copyright infringement claim at the end of the trial!


The problem with this scenario is the cost involved. You may be a strong believer in free speech, but are you willing to spend $50,000 to $100,000 to find out if a judge agrees with your fair use defense? Even if you prevail, you are still out the $50,000 to $100,000 spent defending the case.

Don’t get me wrong. I am all for fighting for free speech. I simply believe it is necessary for people throwing around the fair use defense to understand the practical, financial consequence of taking such a position.

Few do.

Richard A. Chapo, Esq.