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  • Writer's pictureDavid Baker

'Fair use' isn't what most people think


Fair use isn't what most people think it is. Ask someone about the doctrine of "fair use" and they're most likely to respond with something about it being the right to use someone else's intellectual property and not being used for that use. Or they may explain that it's the right to use copyrighted material even without a copyright owner's permission. But whatever they might say in response to your question, it's almost always wrong.

So, what is "fair use" anyway?

Fair use is an affirmative defense to an action for copyright infringement. It is potentially available with respect to all manners of unauthorized use of all types of copyrighted works in all media. The fair use exception permits a party to use a work without the copyright owner’s permission and without compensating the copyright owner for such use in certain circumstances. The copyright law identifies certain types of uses, including criticism, comment, news reporting, teaching, scholarship, and research as examples of activities that may qualify as a fair use.

There is no bright line test for determining when a particular use constitutes a fair use under the law. Whether a particular use constitutes a fair use is determined on a case-by-case basis. In each case a court, in determining whether a particular use made of a work is considered to be a fair use, will look at: (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. Each of these factors is briefly discussed below.

Factor 1: Purpose and Character of Use

Historically the first factor has played a significant role in fair use determinations. In more recent cases that role seems to have dramatically increased to the point where it may be the predominant reason for a finding of fair use. The first factor considers whether use is for commercial purposes or nonprofit educational purposes. On its face, this analysis does not seem too complex. However, over the years a relatively new consideration called “transformative use” has been incorporated into the first factor.

Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work. If the use is found to be a transformative use, it is almost always found to be a fair use. In recent years, the dividing line between the type of transformations of a work that fall within the derivative use right and the types that are considered to be a transformative use has grown unclear. Safe to say, this is an evolving area of the law that has made the already murky doctrine of fair use even murkier.

Factor 2: Nature of Copyrighted Work

Of the four fair use factors, this factor is the least complex and thus also the easiest to evaluate. The more creative a copyrighted work is the more likely there will be a finding of fair use. Thus, when the copyright work being used is a work of fiction this factor favors the copyright owner, but when the work is a factual work it favors a fair use finding. The publication status of the work also plays a role with this factor. When the copyrighted work is unpublished the use is less likely to be a fair use.

Factor 3: Amount Used

This factor considers the amount of the copyrighted work that was used in relation to the copyrighted work as a whole. Where the amount used is very small in relation to the copyrighted work, this factor will favor a finding of fair use. On the other hand, where the amount used is not insignificant in relation to the copyrighted work, this factor will favor the copyright owner.

There are several important factors to take into account here. This factor not only considers how much quantitatively was used but also what qualitatively was used. So, for example, if the portion used was the “heart” of the work, this factor will likely weigh against a finding of fair use even if that portion was otherwise a very small amount. Historically, using an entire work was generally not a fair use. However, there have been some recent cases that have called this tenet into question.

This amount used is considered in relation to the copyrighted work, not in relation to the alleged infringing work. As a result, whether the amount used constitutes a small or large percentage of the alleged infringing work is irrelevant to this factor.

Factor 4: Effect of Use on the Market

Historically this has been the most significant of the four fair use factors. However, this may no longer be the case as many recent court decision have been focused more on whether the use is considered to be “transformative” under the first fair use factor. This factor not only considers whether the defendant’s activities may harm the current market, but also considers whether the use may cause any harms to potential markets that could be exploited by the copyright owner if the use were to become widespread.

Copyright law is established in the U.S. Constitution so it should come as now surprise that the fair use doctrine is outlined in a federal statute, specifically section 107 of the U.S. Copyright Act.

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