(i) reproduce the copyrighted work;(ii) prepare derivative works based thereon;(iii) distribute copies of the copyrighted work;(iv) perform publicly (via digital audio transmission or otherwise); and (v) display publicly.17 U.S.C. § 106(1)-(6).
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
- Direct evidence of copying; or
- Inference of copying, which is drawn when (i) defendant had access to copyrighted work, and (ii) accused work is substantially similar to copyrighted works (or “virtually identical” in some cases).
- an idea – expression “dichotomy” between idea and the expression of the idea;
- merger doctrine – means of expressing an idea is very limited;
- scenes a faire – a common standard expression within a genre;
- functional elements of a concept;
- certain facts which are scientific or universal; and
- public domain materials.
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