What are some factors considered when determining the fair use of copyrights?

Fair use is an affirmative defense that can be raised in response to claims by a copyright owner that a person is infringing a copyright. Fair use permits a party to use a copyrighted work without the copyright owner’s permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. These purposes only illustrate what might be considered as fair use and are not examples of what will always be considered as fair use. In fact, there are no bright-line rules in determining fair use, since it is determined on a case-by-case basis. But copyright law does establish four factors that must be considered in deciding whether a use constitutes a fair use. These factors are:

• The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit 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.

Although one factor or another may weigh more heavily in a fair use determination, each of the factors must be considered and no one factor alone can determine whether the use falls within the fair use exception. However, the factors that are usually the most influential are the first and fourth factors.

Factor 1: The Purpose and Character of the Use

The first factor mostly focuses on whether the use is commercial or non-commercial and whether the use is transformative. If a use is commercial it is less likely to be fair use and if it is non-commercial it is more likely to be fair use. 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 transformative it is more likely to be fair use and if it is not transformative it is less likely to be fair use.

Factor 2: The Nature of the Copyrighted Work

The second factor considers the nature of the underlying work, specifically whether it is more creative or more factual. Use of a more creative or imaginative underlying work is less likely to support a claim of fair use, while use of a factual work would be more likely to support a fair use claim. This factor also looks at the publication status of the copyrighted work. When the copyrighted work is unpublished the use is less likely to be a fair use.

Factor 3: The Amount Used

The third factor considers the amount of the copyrighted work that was used compared 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, but where the amount used is not insignificant, this factor will favor the copyright owner. This factor also considers the qualitative amount of the copyrighted work used. 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.

Factor 4: The Effect of the Use on the Market

The fourth factor not only considers whether the defendant’s activities may harm the current market, but also considers whether the use may cause any harm to potential markets that could be exploited by the copyright owner if the use were to become widespread. If the use harms the copyright owner’s current or potential market then it will weigh against fair use. Along with the first factor, this factor is one of the most important in the fair use analysis.

Copyright law states that at least four factors should be taken into should be taken into consideration when determining fair use:

• The purpose and character of the use
• The nature of the work
• The amount and sustainability of the portion used in relation to the work as a whole
• The effect of the use on the market or potential market for the original work

Being sued for copyright infringement can be a serious matter. Civil statutory damages can be as high as $150,000 per infringement if you are found liable for copying someone else’s work without permission.

However, there are certain affirmative defenses you can raise that would “excuse” the infringing activity. Perhaps the most common affirmative defense is “fair use,” in which you are able to use the copyrighted material without obtaining permission from the copyright holder.

Evaluating Fair Use

Section 107 of the Copyright Act lists four factors that a court should use in determining if someone’s use of a copyrighted work falls into fair use of the work.

1. Purpose And Character of the Use

Courts will consider the purpose and character of the use, including whether the use was commercial in nature or for nonprofit educational purposes.

If I own the copyright on a picture I took, and a business uses that picture in its advertising materials without my permission, this could be considered infringement with no fair use involved.

On the other hand, if a student uses the picture as part of a project for class, the student’s use is more likely to be considered fair use of the photograph.

This is not to say that all commercial transactions are denied the ability to claim fair use. If a graphic artist transforms the photograph into something new and sells this new work, the artist may be successful in pleading a fair use defense.

This “transformative” element is particularly important in avoiding copyright infringement – if you want to use the work, you should add or build on it.

2. Nature of the Copyright Work

The courts will consider the nature of the copyright work, and specifically the amount of creativity that went into the creation of the work.

If the work is largely technical or a news item, such as a simple whitepaper, it is more likely that fair use defenses will be successful, than if the work requires a high degree of creativity, such as a novel or a movie.

3. Amount And Sustainability

Courts will look at the amount and sustainability of the copyright work that has been used.

If you use a small clip of a TV show, song, or movie in an advertisement, it is more likely to be considered fair use than if you use the entire work.

However, even using a small clip may be enough to amount to full infringement, depending on which portion of the work you are using, if it is “the heart and soul” of the work in question.

4. Effect on the Work’s Value

The courts will also look at the effect on the work’s value.

Courts consider both the effect of the defendant’s particular use, as well as the effect that such uses, if widespread, would have on the marketability of the original work in question.

Specifically, courts examine if the original work is losing, or could lose sales, if the use continues and is widespread.

An additional factor that courts typically consider is whether the work is properly attributed to the author.

There is not a specific formula that courts use to determine if the defendant in a copyright infringement case is covered under the fair use defense.

Instead, courts will look at all the facts in the case before making a decision. However, there are a number of scenarios that are more likely to sustain a fair use defense.

Common Fair Use Scenarios

Criticism, Comment, and News Reporting

In general, copyrighted works may be discussed and even sampled by critics. It is common for book or musical album critics to quote an author or songwriter when reviewing a work. Similarly, news reporters are generally allowed to show clips of television or movies, or play a portion of a song without permission from the copyright holder.

This type of fair use defense typically succeeds when there is something transformative about the use. The commentators copying the work are giving an opinion, comparing it to other works, or engaging with it somehow.

The fair use defense has been successful in situations in which the copyright holder attempts to silence critics of the work. Criticism is by nature transformative, so it is permitted under this defense.

Teaching, Scholarship, and Research

Academics are typically also allowed to use copyrighted works without gaining permission of the author.

Teachers are typically allowed to make copies of short stories, book excerpts, poetry, or song lyrics for students in class, up to a certain extent. However, they may not make unauthorized copies of entire novels to distribute to the class, unless those works are old enough to be part of the public domain.

Students and researchers may also quote copyrighted works in projects, reports, and dissertations because they are generally engaging with the work and transforming it into something new.

Parody

Parody, a subset of commentary or criticism, is one of the most common types of fair use defense. Under parody, the work is being used in a humorous way or for social commentary.

Parody requires a certain amount “borrowing” from the original copyrighted work in order to make a point, which is why it is generally permitted as a fair use defense.

Fair Use: Avoiding a Copyright Lawsuit

The best way to prevent a copyright lawsuit is to obtain permission from the copyright holder for your use. However, this is not always possible, especially if tight deadlines are creeping up or if you wish to criticize the content of the copyrighted work.

If you are unable to obtain the permission, the next best thing you can do is ensure that you are adding to the original work by transforming it into something new.

You should also be selective about which portions of the work you utilize. If you take too much, you use may be considered infringement, even if you are offering valid criticism or creating a thoughtful parody of the work in question.

This article is for informational purposes only and does not contain legal advice. If you have questions regarding copyright protection, copyright infringement, or other intellectual property matters, contact our experienced IP attorneys today with the form on this page, or call us at 855-473-8474.

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