Fair Use: It's a Defense to Copyright Infringement

Fair use is a shield ... not a sword

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It was the intent of the drafters of the Constitution that copyright law would encourage creativity. However, creativity would be severely hampered if there were no limitations on authors' rights. Imagine if a music reviewer could not quote lyrics or if the owner of a painting could not display the work in a museum. Such uses are permitted under a principle known as fair use. In these cases, the use may infringe, but the infringement is excused because the work is being used for a transformative purpose such as research, scholarship, criticism, or journalism. When determining whether an infringement should be excused on the basis of fair use, a court will use several factors including the purpose and character of the use, amount and substantiality of the portion borrowed, and effect of the use on the market for the copyrighted material.

It’s a Defense!

It’s important to understand that fair use is a defense rather than an affirmative right. This means that a particular use only gets established as a fair use if the copyright owner decides to file a lawsuit and the court upholds the fair use defense. There is, therefore, no way to find out in advance whether something will or won’t be considered a fair use. Of course, if the copyright owner is willing to grant permission for the use, then the uncertainty surrounding the use goes away. For this reason, most people who propose to use a copyrighted work do what they can to obtain permission and only rely on the fair use defense if permission is not granted or the copyright owner can’t be located. A person who infringes a copyright but has good reason to genuinely believe that the use is a fair use is known as an innocent infringer. Innocent infringers usually don’t have to pay any damages to the copyright owner but do have to cease the infringing activity or pay the owner for the reasonable commercial value of that use.

What is fair use?

Fair use is a right to use copyrighted material for limited purposes and without the consent of the author. Supreme Court Justice Blackmun wrote that the intent of fair use is "to encourage users to engage in activities the primary benefit of which accrues to others."  In other words, fair use is intended to promote a benefit to the public by permitting the borrowing of portions of a work. Traditionally, this has meant the right to comment upon, criticize or parody copyrighted works. The application of fair use principles is also meant to incorporate and balance the right of free speech granted under the U.S. Constitution.

Copyright law defines fair use as the “right to use copyrighted material for limited purposes and without authorization of the author.” What is (or is not fair use) is determined by a federal court after weighing several factors including: purpose and character of the use, amount and substantiality of portion borrowed, and effect of the use on the market for the copyrighted material.

Examples from Copyright Act

The Copyright Act of 1976 offers several examples of fair use such as copying for "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research."  Other examples were presented in the legislative history of the Copyright Act of 1976 including quotation of excerpts in a review or criticism for purposes of illustration or comment; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations in a news report; reproduction by a teacher or student of a small part of a work to illustrate a lesson; or reproduction of a work in legislative or judicial proceedings or reports.

Certain uses of copyrighted material are automatically classified as a fair use. The home videotaping of a television broadcast was determined to be a fair use by the U.S. Supreme Court in the case of Universal City Studios, Inc. v. Sony Corp. of America. However, the taping must be off the air and for personal use, not for commercial purposes. Similarly, the duplication of a work in a single copy is permitted as a service to the blind.

Questions for Evaluating a Fair Use Defense

  • Does the use transform the character or effect of the work being borrowed. The more transformative, the more likely a ruling of fair use.
  • Does the use deprive the copyright owner of income? If so, this weighs against fair use.
  • Does the use undermine a new or potential market for the work? If so, this factor weighs against fair use?
  • Is the use for educational, scientific, historical or other purposes which further the dissemination of knowledge? If so, this factor weighs in favor of fair use.
  • Is the nature of the work that has been borrowed informational or entertaining? Borrowing from entertaining works weighs against fair use.
  • Is the work that has been borrowed published or unpublished? Using an unpublished work weighs against fair use.
  • How much of the work is borrowed? The more taken, the more it weighs against fair use.
  • How important is the portion borrowed to the work from which it was taken? If the “heart” of the work is taken, it weighs against fair use. 

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