As you probably know, it is generally an infringement to use another’s copyrighted work without authorization. However, one common defense to infringement actions is “fair use.” But how can you determine whether something is used in “fair use”?

The courts follow a four-step balancing test, which can be quite complex and examines both the original and the copied works in much detail. Only after examining and weighing all four factors will the courts decide whether an item was used in “fair use.”

The first factor is the “purpose and character of the use.” For instance, non-profit educational purposes will weigh more in favor of fair use than for-profit uses. Uses exploiting an original work for commercial gain tend to weigh in the other direction. This factor also considers the transformative nature of the new work. For instance, a “parody” (assuming it’s a true parody) will weigh in factor of fair use in this factor.

The second factor is the “nature of the copyrighted work.” The more informational and functional the original work, the broader the scope of the fair use defense. For original creative expressions such as many songs and paintings, this factor generally weighs against fair use.

One Nevada attorney-turned-serial copyright litigant seems to have created a new legal niche — at the expense of bloggers and website owners nationwide.

Steve Gibson is an Illinois- and Nevada-licensed attorney living in Las Vegas, where he helms Gibson Lowry Burris LLP, a law firm that focuses on, among other things, copyright law. Around the beginning of the year, Gibson formed Righthaven, LLC, a company with the purpose of buying and registering copyrights of newspaper articles which have been lifted at least in part by bloggers and website operators, and then suing whoever he can find who has copied them.

Since the company’s formation, Righthaven has filed more than 80 copyright infringement lawsuits, sometimes several in a day, and all in the District Court for Nevada, against bloggers and website operators throughout the country.