....these works provide springboards for new ideas or interesting new twists on the original work. The question then becomes, "Can I use something someone else wrote, painted or composed in something I am doing?"
Actually, the question is always "How much can I use without violating some law?" The law involved is usually copyright and the simple answer is: without permission, NONE. There are exceptions to this answer, however. The first occurs when is the material is public domain material, in which case it can be used freely, and the second is when the use would qualify as "fair use" under the copyright laws. This article is devoted to this second exception.

Fair use is a defense to a claim of copyright infringement. It is designed to allow broadcasters, researchers, scholars and others similarly situated, to use otherwise protected works without permission. Although just what constitutes fair use is not easy to identify, here are some factors which go into analyzing whether a potential copying and use without permission will meet the standard.

First is the purpose and character of the use and whether it is commercial or non-commercial. In the case of teaching, research, criticism and other somewhat scholarly pursuits, fair use is generally favored. And although newspapers and television supported by advertising are certainly commercial enterprises, news reporting is also favored in fair use questions. The further you stray from these traditional uses, the riskier it becomes. Probably the most interesting cases in the commercial field arise where parody is the central feature. Generally categorized under the criticism heading, it has produced some ferocious litigation in the past, suits that were based more on emotion than economics.

The second consideration is the nature of the work. Factors important here include whether the copied work is heavily fact-based, whether it's work visual as opposed to literary, and has it been published. Works which are largely fact based may enjoy a little less protection than other more general works, because there is usually only a limited way to express such material. Visual works, on the other hand, receive more protection because of the almost infinite ways of presentation.

A third factor in a fair use determination involves the amount and importance of the copied material in relation to the work as a whole. This is the "heart of the matter" concept. The interesting dichotomy here is that in true criticism and scholarly works, quoting the heart of the work is generally very important and is considered appropriate fair use, while in commercial or other contexts, copying the heart of a work makes a finding of fair use less likely.

The fourth element of the analysis is the effect of the copying on the potential market or value of the copyrighted work. Since most things boil down to dollars and cents, this is probably the essence of the matter. If the copying really does not reduce the market value of the work (and in some cases the copying it actually enhances the value, by increasing public awareness of a work), then it is more likely to be considered a fair use. It is sort of the "no harm, no foul" approach. This element of the analysis is one reason that copying from unpublished material, which has unknown potential value, may be more risky copying from published works, which may have demonstrated that they have limited or little commercial worth.

Another interesting consideration in this issue is whether there will be competition between the original and the copied works. If so, then qualifying as a fair use is less likely, since the probability of reducing the value of the original increases.

Here is a Chart that can help in analyzing whether the copying of a work will qualify as fair use:

I suspect however, in most instances it comes down to something like this:

A bar waitress named Guinevere
Sang songs to all who would hear
And she didn't care
If her song use was fair
If her song use was fair