REPUBLIC ACT NO.

8293
AN ACT PRESCRIBING THE INTELLECTUAL PROPERTY CODE AND ESTABLISHING THE
INTELLECTUAL PROPERTY OFFICE, PROVIDING FOR ITS POWERS AND FUNCTIONS,
AND FOR OTHER PURPOSES

PART I
The Intellectual Property Office

PART II
The Law on Patents

CHAPTER I
General Provisions

CHAPTER II
Patentability

I. Core Requisites of Patent

a. Novelty (New): The invention must not form part of the prior art, meaning it has
not been made public, sold, or described in a publication anywhere in the world
before the filing date.
b. Inventive Step (Non-obvious): The invention must not be obvious to a "person
skilled in the art" (a hypothetical expert in that field). It requires a technical
advancement over existing knowledge.
c. Industrial Applicability (Useful): The invention must be able to be produced or
used in any industry. It must have a practical, useful purpose.
CHAPTER III
Right to a Patent

CHAPTER IV
Patent Application
[Link] Requirements & Scope
a. Patentable Subject Matter: Covers products, machines, processes, or
improvements.
b.  Non-Patentable Subject Matter: Discoveries, scientific theories,
mathematical methods,, business methods, or natural substances.
c. Disclosure: The application must sufficiently describe the invention to allow a
skilled person to reproduce it.
CHAPTER V
Procedure for Grant of Patent

CHAPTER VI
Cancellation of Patents and Substitution of Patentee

CHAPTER VII
Remedies of a Person with a Right to a Patent

CHAPTER VIII
Rights of Patentees and Infringement of Patents
III. Literal Infringement Test vs. Doctrine of Equivalents Test
 Feature Literal Infringement Test Doctrine of Equivalents Test
Nature of Test Rigid and strict. A word-for- Flexible and equitable. Designed to
word comparison of the patent catch “copycats” who make minor,
claims and the accused insubstantial changes.
product.
Requirement The accused product must The accused product captures the
contain every single element “innovative concept” despite minor
listed in the patent claim. differences.
Methodology Juxtaposition: placing the “Triple Identity” Test: substantially
claim wording right next to the the same Function, Mean (Way),
competitor’s product. and Result.
The “Escape” If one element is missing or Changing a minor detail (e.g.,
different, there is no literal material) does not escape liability.
infringement.
Leading Case Godines v. Court of Appeals Smith Kline Beckman Corp. v. Court
(PH) (G.R. No. 97343) of Appeals (G.R. No. 126627)

CHAPTER IX
Voluntary Licensing

CHAPTER X
Compulsory Licensing
IV. Concept of Licensing
- Licensing is purely an authorization to use and benefit from the invention,
not a mechanism to find or create a new owner.
- Example: Assigning a patent is like selling the house to a new owner, while
licensing is simply renting the house to a tenant. The tenant gets to live
there and enjoy it, but the landlord still owns the property.
V. Voluntary vs. Compulsory Licensing
Feature Voluntary Licensing Compulsory Licensing
Consent Granted willingly by the patent Imposed by the state without
owner. owner consent.
Nature of Purely contractual and Statutory, administrative, or court-
Agreement commercial. ordered.
Primary Goal Technology transfer and Public interest, health
business expansion. emergencies, or national security.
Compensation Mutually negotiated between Set by administrative guidelines
parties. or courts.
Control Owner retains full control over State or local law dictates limits
the terms. and scope.

VI. Economic vs. Moral Rights

Feature Economic Rights Moral Rights
Primary Goal Financial Gain (Profit). Personal Reputation (Honor).
 Transferability Fully Transferable (Can be Inalienable (Cannot be sold).
sold).
Waiver Usually done via Can be waived in writing (with limits).
licensing/assignment.
Core Examples Selling a movie script; Having your name on the book cover.
Spotify streams.
Heirs Heirs inherit the right to Heirs inherit the right to protect the
collect royalties. author's name/integrity.

The "Inalienable" Rule Reminder: While Moral Rights can be waived (given up),
the Droit de Suite (Resale Right) mentioned earlier is even stricter—it is
inalienable, meaning it cannot be sold and cannot be waived.

CHAPTER XI
Assignment and Transmission of Rights
VII. Different From Licensing and Agency
Concept What the Third Party Gets Ownership
Licensing Permission to make or use the Retained by the original
(Voluntary/Compulsory) product. owner.
Assignment Complete ownership and legal Transferred to the new
title. owner.
Agency Authority to represent and act Retained by the original
on the owner’s behalf. owner.

CHAPTER XII
Registration of Utility Models

CHAPTER XIII
Industrial Design and Layout-Designs (Topographies) of Integrated Circuits
VIII. Patent vs. Utility Model vs. Industrial Design
Feature Patent Utility Model (UM) Industrial Design
(ID)
Protects Functional Invention Technical Appearance /
Improvement Ornamentation
Requisites New, Inventive Step, New, Industrial New, Ornamental /
Industrial Application Application Aesthetic
Term 20 Years 7 Years 5 Years (Renewable
twice)
Examination Substantive Examination No Substantive No Substantive
Exam Exam
Cost & Time High & Slow Lower & Faster Low & Fast

Example New ink flow system Unique clicker Ergonomic, stylized

(Pen) mechanism shape
 PART III
The Law on Trademarks, Service Marks and Trade Names

I. Functions of Trademarks
a. To indicate the origin of the goods to which they are attached.
b. To guarantee the standard of the goods.
c. To advertise the goods (Mirpuri vs. CA).
II. Tradename vs. Trademark

Feature Trade Name Trademark

Legal The name or designation Any visible sign capable of
Definition identifying or distinguishing an distinguishing goods or services
enterprise (the business entity). of an enterprise.
Primary The reputation and identity of The origin and quality of a specific
Focus the company or establishment. product or service.

Registration Registered with the DTI (for Registered with the Intellectual
Sole Proprietorships) or SEC Property Office of the Philippines
(for Corporations/Partnerships). (IPOPHL).
Protection Protected under RA 8293 even Rights are generally acquired
without registration against through valid registration with the
unfair competition or confusing IPOPHL.
use.
Examples Golden Arches Development McDonald’s, Big Mac, Happy
Corporation Meal
Relation to Represents the reputation and Represents the consumer trust
Goodwill goodwill of the business as a attached to a specific product or
whole. It attracts “institutional service. Trademark protection
trust,” where customers transact prevents competitors from
with the company because of its “passing off” their goods as those
reliability, creditworthiness, or of the original source.
history.
Link to Both trade names and The trademark protects the
Goodwill trademarks are considered legal goodwill associated with the
manifestations of goodwill under product or service. Under Section
RA 8293and Philippine 149 of RA 8293, a trademark
jurisprudence. The trade name registration may only be assigned
protects the goodwill of the together with the goodwill of the
enterprise itself. business connected with the use
of the mark.

III. First-to-File Principle vs. Well-Known Marks

Section Key Principle Scope of Protection
Section 147.1 First-to-File Protection applies to identical or similar
Principle goods/services only.
 Section 147.2 Well-Known Protection extends even to dissimilar or
Marks unrelated goods/services.

IV. Unregistered Well-Known Marks

- While Section 147.2 specifically refers to registered well-known marks,

Section 123.1(e) of RA 8293 also protects well-known marks even if
unregistered in the Philippines, but only with respect to identical or similar
goods or services.

V. The complete doctrine and legal basis for Birkenstock Orthopaedie GmbH & Co. KG
v. Philippine Shoe Expo Marketing Corp. (2013) are as follows:
a. The Doctrine
i. Ownership over Registration: The right to a trademark is based on
ownership, which is acquired through actual use in commerce.
Registration does not create ownership; it merely serves as prima facie
evidence of it.
ii. Bad Faith & The "Independent Coining" Test: A registration is void if
obtained in bad faith. Because "Birkenstock" is a highly distinct, arbitrary
German surname, it is impossible for a local entity to have independently
coined it. Using such a unique mark without justification proves a
fraudulent intent to pirate the true owner’s goodwill.
iii. Automatic Abandonment (The DAU Rule):Filing a Declaration of Actual
Use (DAU) is a mandatory administrative requirement to prove the mark
is not being "warehoused." Failure to file the DAU results in the automatic
cancellation of the registration and is legally deemed an absolute
abandonment of the mark.
b. Applicable Legal Basis
i. Section 124.2, IPC (RA 8293): Mandates the filing of a DAU within the 3rd
and 10th year of registration; non-compliance leads to automatic
cancellation.
ii. Section 151.1(b), IPC: Provides that a trademark registration may be
cancelled at any time if it was obtained fraudulently or in bad faith.
iii. Section 165, IPC: Protects Trade Names(like "Birkenstock") from unlawful
use by others, even prior to or without registration, if such use would likely
mislead the public.
iv. Section 2-A, RA 166 (Old Trademark Law):Cited to emphasize that the
actual user in good faith is the party entitled to the protection of the law, a
principle carried over to the current IPC.
VI. The complete doctrine and legal basis for Asia Brewery, Inc. v. Court of Appeals
(1993) are as follows:
a. The Doctrine
i. The Holistic Test: Infringement is determined by looking at the entirety of
the marks as they appear on the product (labels, colors, shapes, and
sizes). The Court ruled that because Asia Brewery clearly printed its own
name and logo on its "Beer Pale Pilsen," a "reasonably prudent
consumer" would not confuse it with San Miguel’s version.
 ii. Non-Exclusivity of Generic/Descriptive Terms: The words "Pale Pilsen"
are generic names for a type of beer. No company can have a monopoly
over these terms, as they describe the product's nature, not its origin.
iii. Functional Features & Competition:Common industry features—such as
the amber-colored "steinie" bottle—cannot be appropriated exclusively by
one manufacturer. Using similar functional packaging is allowed as long
as the manufacturer clearly identifies itself to avoid "passing off" its goods
as those of another.
b. Applicable Legal Basis
i. Section 22, RA 166 (Trademark Infringement): Prohibits the use of a
"colorable imitation" of a mark likely to cause confusion. The Court found
the labels were visually distinct enough to avoid this.
ii. Section 29, RA 166 (Unfair Competition):Requires proof that a party is
trying to deceive the public by passing off their product as a competitor's.
The Court ruled that the prominent use of the "Asia Brewery" name
negated any intent to deceive.
iii. Doctrine of Secondary Meaning: A legal principle where a generic term
can become a trademark if it becomes uniquely associated with one
brand. The Court ruled "Pale Pilsen" had not acquired this status
exclusively for San Miguel.
VII. Doctrine of Secondary Meaning
a. The Core Concept: Standard trademark law prohibits registering marks that are
merely descriptive (e.g., "Tasty" for bread). However, a descriptive mark
becomes protectable if it acquires Secondary Meaning.
i. Primary Meaning: The literal, dictionary definition or description of the
product (e.g., "Ginebra" means "gin" in Spanish).
ii. Secondary Meaning: The public’s mental association of that word with
one specific producer rather than the product itself (e.g., consumers
associate "Ginebra" specifically with Ginebra San Miguel, Inc.).
b. Legal Basis: Section 123.2, Intellectual Property Code (RA 8293): A descriptive
mark can be registered and protected if the applicant proves:
i. Substantial and Exclusive Use: The mark has been used exclusively in
Philippine commerce for at least five (5) years.
ii. Public Perception: The "primary significance" in the minds of the
consuming public has shifted from the product’s quality to the producer’s
identity.
iii. Evidence of Acquisition: Proven through high sales volume, extensive
advertising costs, and consumer recognition surveys.
c. The Distinctiveness Spectrum: The strength of a trademark and its requirement
for Secondary Meaning depends on its category:

Category Definition Protection Level

Generic Common name for the product Never protectable.
(e.g., "Bread").
Descriptive Describes a quality, ingredient, or Protectable ONLY with
origin (e.g., "Sweet"). Secondary Meaning.
Suggestive Hints at the nature of the product Inherently distinctive;
(e.g., "Netflix"). protectable immediately.
 Arbitrary / Real words used in unrelated Strongest protection;
Fanciful ways (e.g., "Apple" for tech) or inherently distinctive.
made-up words (e.g., "Kodak").
d. Application in Jurisprudence
i. Asia Brewery v. CA: San Miguel failed to prove that "Pale Pilsen" (a
descriptive term for beer) had acquired a secondary meaning exclusive
only to them; thus, they could not prevent others from using it.
ii. Birkenstock v. Phil. Shoe Expo: Since "Birkenstock" is an Arbitrary mark
(a surname), it didn't need to prove secondary meaning—it was protected
immediately upon use.
e. Key Takeaway: If a mark is descriptive, its legal life depends on Section 147
(Rights Conferred), which can only be triggered once the owner proves the public
identifies the term exclusively with their brand.

VIII. Tests for Confusion & Legal Remedies

a. The Two Tests for Likelihood of Confusion: Courts apply these tests to determine
if a mark is a "colorable imitation" of another.

i. Dominancy Test (The Current Prevailing Standard)

1. Focus: Compares the dominant, essential, or main features of the

competing marks.

2. Rule: If the most recognizable part of a trademark is copied, there

is infringement—even if the labels have minor differences.

3. Case Basis: Skechers U.S.A., Inc. v. Inter Pacific (2011)

established this as the primary test.

4. Other Examples: UFC v. Barrio Fiesta (The word "PAPA" was the
dominant feature); McDonald’s v. LC Big Mak (The "Big Mac"
name was dominant).

ii. Holistic Test (The Alternative/Older Standard)

1. Focus: Considers the entirety of the marks, including labels, colors,
sizes, and packaging (the "look and feel").
2. Rule: Confusion is unlikely if the overall visual presentation is
distinct enough that a prudent consumer can tell the difference.
3. Case Basis: Asia Brewery v. CA (San Miguel vs. Beer Pale
Pilsen—different logos and clear brand names prevented
confusion).
b. Types of Confusion: Confusion is legally categorized based on what the
consumer is mistaken about:
i. Confusion of Goods: The consumer believes they are buying one product
but gets another (e.g., buying "Cool-Aid"thinking it is the original "Kool-
Aid").
 ii. Confusion of Business: The consumer knows the products are different
but mistakenly believes they come from the same source or are affiliated
(e.g., a car repair shop using the "Ferrari" logo, leading people to think it
is an authorized service center).

c. Infringement vs. Unfair Competition

Feature Trademark Infringement Unfair Competition

Legal Basis Violation of property rights Violation of the right to fair
(the mark itself). business.
Registration Generally requires a No registration required.
registered mark.
Fraudulent Intent Not necessary to prove. Essential (Intent to "pass off").

Focus Similarity of the marks. Deceptive practices/Deceiving

the public.
d. Key Case Doctrines (At a Glance)

1. Skechers U.S.A. v. Inter Pacific: Dominancy Test is the standard; minor

additions/changes cannot escape liability if dominant features are copied.

2. Mighty Corp. v. E. & J. Gallo Winery: Non-competing goods (cigarettes vs.

wine) may still cause confusion if the marks are identical and the public thinks
they are related.
3. Marvex Commercial Co. v. Petra Hawpia & Co.: Words with similar sounds
(Aural Similarity) such as "Lionpas" and "Danpas" can cause confusion even if
they look different.
4. Emerald Garment Mfg. Corp. v. CA: High-priced items (like luxury jeans) are
bought with more care; thus, confusion is less likely compared to cheap,
everyday items.
e. Summary for Memory:
i. Dominancy Test = Main features only (Skechers).
ii. Holistic Test = Entire package (Asia Brewery).
iii. Infringement = Registered + No intent needed.
iv. Unfair Competition = Unregistered + Intent to deceive needed.
 PART IV

The Law on Copyright

I. Copyright (Pearl & Dean, Derivative Works, and Droit de Suite)

a. Pearl & Dean (Phil.), Inc. v. Shoe Mart, Inc. (2003): This landmark case defines
the boundary between Copyright and Patent.

i. The Conflict: Pearl & Dean copyrighted the engineering drawings of

"Poster Ads" (light boxes). They sued SM for manufacturing similar boxes,
claiming copyright infringement

ii. The Doctrine:

1. Copyright vs. Patent: Copyright protects the expression (the

drawings); Patent protects the functional invention (the actual light
box).

2. No Monopoly on Function: Copyrighting a technical drawing does

not give the author the exclusive right to manufacture the object
shown in the drawing. To prevent others from making the object,
one must secure a Patent.

3. Public Domain: Since the light boxes themselves were not

patented, they were in the public domain and could be freely
copied.

b. Original vs. Derivative Works (Section 173.2, IPC)

Feature Original Work Derivative Work

Example A novel (Author A). A movie script of that novel
(Writer B).
Ownership Owns the entire underlying Owns only the newly added
IP. elements.
Control Can stop others from Needs a license from the
adapting. original owner.
Protection Lifetime + 50 years. Lifetime + 50 years (for the
adaptation).

Legal Rule: A derivative work cannot decrease the rights of the original author,
give the creator rights to the "source" material, or extend the original work's
copyright duration.

c. Droit de Suite (Artist's Resale Right)

 i. Legal Basis: Section 200, IPC (RA 8293). This is an inalienable right
(cannot be sold or waived) that allows artists to share in the increased
value of their work over time.

ii. The Right: The artist or their heirs receive a percentage of the gross
proceeds from every sale or lease of the work following the first
disposition by the artist.

iii. Protected Works: Original paintings, sculptures, and manuscripts of

writers/composers.

iv. Exclusions: Does not cover mass-produced prints, etchings, engravings,

or applied art.

v. Conditions for Enforcement:

1. Must involve an art market professional (galleries, dealers, auction

houses).

2. The work must be enrolled in the National Registry of Qualified

Works (BCCR).

d. Philippine Royalty Scale (Section 200) - Calculated on the gross selling price
(excluding VAT):

Selling Price Range Royalty Percentage

Up to ₱150,000 5%
₱150,001 to ₱350,000 4%
₱350,001 to ₱600,000 3%
₱600,001 to ₱1,000,000 2%
₱1,000,001 to ₱2,000,000 1.5%
Above ₱2,000,000 1%

Key Takeaway: Pearl & Dean prevents using copyright to bypass patent
law; Derivative Works protect the new while respecting the old; and Droit
de Suite ensures artists profit from their success even after the first sale.

II. Neighboring Rights & 2026 Copyright Updates

a. Neighboring (Related) Rights: These rights protect the "middlemen" who bring
creative works to the public. They are distinct from the original author’s copyright.

b. The Three Beneficiaries:

i. Performers: Actors, singers, musicians, and dancers. They control the

recording (fixation) and broadcasting of their live performances.
 ii. Producers of Sound Recordings: The individuals or entities that manage
the "fixation" of sounds. They protect the actual audio file/record from
unauthorized reproduction.

iii. Broadcasting Organizations: Entities that transmit programs. They protect

their specific broadcast signals from being re-transmitted or recorded
without consent.

c. Primary Rights Conferred:

i. Right to Authorize/Prohibit: These groups can stop the unauthorized

fixation (recording), broadcasting, or reproduction (copying) of their work.

d. New Regulations & Updates (March 2026) - The Copyright Services Rules
introduced significant administrative and substantive changes:
i. Resale Rights Registry: Introduced a formal registry for "Droit de Suite"
(Resale Rights). This facilitates the collection of the 5% royalty from the
sale or lease of original artworks/manuscripts.
ii. Administrative Efficiency: Minor corrections to Copyright Certificates no
longer require full Director approval, speeding up the clerical process at
the IPOPHL.
iii. Fair Use Guidelines (2024): Clarified "safe harbors" for using material
without permission, specifically for:
1. Education: Classroom use and research.
2. News Reporting: Short excerpts for informational purposes.
e. Duration & Evidence of Protection
i. Standard Term: Generally, the lifetime of the author plus 50 years after
death.
ii. Automatic Protection: Copyright exists from the moment of creation. You
do not need to register to be protected.
iii. Value of Registration: Filing with the National Library or IPOPHL is highly
recommended because it provides prima facie evidence (legal proof) of
ownership in court.

f. Summary Comparison

Feature Copyright Neighboring Rights

Who is protected? The Author/Creator. Performers, Producers,
Broadcasters.
What is protected? The original The performance or the
expression/idea. delivery of the work.
Duration Life + 50 years. 50 years from
performance/recording.
Core Goal Protects the "Source." Protects the "Disseminator."
 Key Takeaway: While the author owns the song, the singer owns the rights to
their performance of it, and the record label owns the rights to the audio
recording. Each layer requires its own set of permissions.

III. Creation vs. Registration (IP Protection): This focuses on the trigger points for legal
protection in the Philippines—whether rights begin at the moment of creation or only
upon government registration.

a. Automatic Protection (Creation-Based): For these rights, you are protected the
moment you express your idea in a tangible form. No government paperwork is
required for the right to exist.

i. Copyright

ii. Trigger: Creation. Protection begins the moment a work (book, song,
painting, etc.) is created.

iii. Why Register? Registration with the National Library or IPOPHL is

advisable, not mandatory. It creates a public record and serves as prima
facie (at first sight) evidence of ownership, which is crucial for court cases
or managing rights after the author’s death.

iv. Neighboring Rights - Trigger: Performance/Fixation. Rights for performers

(singers/actors) and producers begin the moment the performance is
given or the sound is recorded.

b. Registration-Required Protection (Application-Based): For these "Industrial

Property" rights, you have zero legal protection until you apply for and receive a
certificate from the IPOPHL.
i. Trademarks - Trigger: Registration. While the Birkenstock case highlights
that the true owner is the actual user, legal protection and the right to sue
for infringement are established through registration.
ii. Patents - Trigger: Grant of Patent. Exclusive rights to a functional
invention only exist once the patent is officially granted after a full
examination of novelty and inventiveness.
iii. Utility Models ("Small Patents") - Trigger: Registration. Like patents, but
faster because they skip the "inventive step" examination.
iv. Industrial Designs - Trigger: Registration. Protects the unique ornamental
or aesthetic look of a product. Without registration, competitors can copy
the design freely unless it qualifies as a "trade dress" under unfair
competition.
c. Comparison Table: Creation vs. Registration

IP Type Protected Is Registration Legal Effect of

Upon... Mandatory? Registration
Copyright Creation No Provides legal evidence
& public notice.
 Trademark Registration Yes Grants exclusive right to
use the mark.
Patent Registration Yes Grants 20-year monopoly
on function.
Utility Model Registration Yes Grants 7-year monopoly
on function.
Industrial Registration Yes Protects aesthetic/visual
Design features.

d. Key Legal Prohibitions

i. No Simultaneous Filing: You cannot file for a Patent and a Utility Model
for the same invention at the same time. You must choose one.

ii. Public Domain: Functional objects that are not patented (like the light
boxes in Pearl & Dean) are considered part of the public domain—anyone
can copy them because copyright registration of the drawings does not
protect the object.

IV. Types of Infringement & Liability

a. Comparison of Infringement Types: Liability can be direct or indirect. Even if you

aren't the one "pressing the copy button," you may still be legally responsible.

Feature Direct Vicarious Liability Contributory

Infringement Infringement
Core Action Performing the Benefiting from an Providing tools,
act (copying, act while having the material, or
selling, etc.). power to control it. encouragement for
the act.
Direct Yes No No
Commission
Financial Not required. Yes (Direct profit). Not required.
Benefit
Knowledge/N Not required Not required (but Yes (Knowledge of
otice (Strict must have power to the act is key).
Liability). stop it).

b. Key Case Doctrines

i. Habana v. Robles (G.R. No. 131522):

Doctrine: Infringement is determined not by how much was copied, but by

the substantiality of the portion taken. If the "heart" of the work (even if a
small part) is copied and utilized to compete with the original, it is
infringement.

ii. Williams & Thicke v. Bridgeport Music (The "Blurred Lines" Case):
 Doctrine: Established that copyright can extend beyond specific lyrics and
notes to the "feel" or "groove"of a song if the "constellation" of rhythmic
and melodic elements is too similar to the original work (Got to Give It Up).

iii. Microsoft Corp. v. Comic Ali:

Doctrine: Reaffirmed that selling pirated software is a violation of the

Economic Rights of the creator. Knowledge of the piracy is not necessary
for direct infringement; the act of selling unauthorized copies is sufficient.

V. Special Statutory Rules

• Anti-Camcording Act of 2010 (RA 10088):

◦ Rule: Strictly prohibits the unauthorized use of any device to record or
transmit a motion picture inside a cinema. This is a special criminal law
where the mere act of recording is punishable, regardless of whether the
copy is sold or for personal use.
• Section 185, IPC (Fair Use):
◦ Doctrine: Not all copying is infringement. The Fair Use Doctrine allows for
the use of copyrighted material without permission for purposes such as:
1. Criticism and Comment
2. News Reporting
3. Teaching/Education and Scholarship
4. Research
VI. The Test for Fair Use (Four Factors): You can be liable even if you didn't mean to
infringe (Direct), if you made money from someone else's infringement (Vicarious), or
if you helped someone else do it (Contributory).

1. Purpose: (Commercial vs. Non-profit/Educational).

2. Nature of the Work: (Fact-based vs. Highly creative).
3. Amount Used: (A small snippet vs. the "Heart" of the work).
4. Market Effect: (Does the use decrease the original author’s sales?).