In a copyright infringement claim, the fair use defense is often raised. Fair use is an affirmative defense that stems from the United States Copyright Act, which provides at 17 USC Sec. 107:
"[T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include‐‐
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work."
In copyright litigation, fair use is an affirmative defense, so the party raising it has the burden of proof and persuasion. Courts undertake a case‐by‐case analysis and consider each statutory factor weighing them together in light of the purposes of copyright, which is to protect authors. Courts are required to consider each factor, with the rule that some factors are more important than others, and the market impact factor being the single most important factor.
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