One of the most misunderstood doctrines in intellectual property law is the copyright doctrine of Fair Use. Invariably, when a party has been accused of infringing a copyright or is considering a potentially risky copyright use, it must evaluate the Fair Use doctrine. Many overestimate the scope of this defense. If you only use a little of the original work, it’s Fair Use, right? Or, if a non-profit uses a copyrighted work, is it always protected from liability by the Fair Use doctrine? Unfortunately, the courts have not provided clear categorical rules governing application of the Fair Use doctrine. The result makes it more suitable to a defensive litigation strategy than a productive tool for prospectively evaluating the use of copyrighted content.

Yet, it does not have to be that way.