Fair Use


Fair use is a US legal doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. It is similar to the fair dealing doctrines used in some countries outside the United States.

Fair use (U.S. trademark law)

In the United States, trademark law includes a fair use defense, sometimes called "trademark fair use" to distinguish it from the better-known fair use doctrine in copyright. Freedom of speech as guaranteed by the First Amendment is a premise for the fair use doctrine in both trademark and copyright law.

A non-owner may also use a trademark nominatively—to refer to the actual trademarked product or its source. In addition to protecting product criticism and analysis, United States law actually encourages nominative usage by competitors in the form of comparative advertising.

Nominative use

Also "nominative fair use", is a legal doctrine that provides an affirmative defense to trademark infringement as enunciated by the United States Ninth Circuit,[1] by which a person may use the trademark of another as a reference to describe the other product, or to compare it to their own.

The nominative use test essentially states that one party may use or refer to the trademark of another if:

  1. The product or service cannot be readily identified without using the trademark.
  2. The user only uses as much of the mark as is necessary for the identification.
  3. The user does nothing to suggest sponsorship or endorsement by the trademark holder. This applies even if the nominative use is commercial, and the same test applies for metatags.

Limitations and exceptions to copyright

Limitations and exceptions to copyright are provisions, in local copyright law or Berne Convention, which allow for copyrighted works to be used without a license from the copyright owner.

Lenz v. Universal Music Corp.

Lenz v. Universal Music Corp., 801 F.3d 1126 (2015), is a decision by the United States Court of Appeals for the Ninth Circuit, affirming the 2008 ruling of the US District Court for the Northern District of California, holding that copyright holders must consider fair use in good faith before issuing a takedown notice for content posted on the Internet.

Rogers v. Grimaldi

Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) is a trademark and intellectual freedom case, known for establishing the "Rogers test" for protecting uses of trademarks that implicate intellectual freedom issues.

Freedom of speech

Freedom of speech is the right to communicate one's opinions and ideas without fear of government retaliation or censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used.

Fair dealing

Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations.


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