How is fair use determined?
A determination of fair use generally occurs during an infringement suit. A party accused of infringement argues that the infringement is excused under the fair use doctrine. A court, faced with this argument, weighs several factors and if the weight of the factors is in favor of the defendant then the unauthorized use of the material is permitted. In order to guide judges in making determinations of fair use, the drafters of the Copyright Act of 1976 included four factors:
- 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.
Although the fourth factor, the effect of the use upon the potential market, used to be considered to be the most important, a more recent decision by the Supreme Court emphasized the first factor and in particular, “transformative” uses that affect the purposes and character of the use. The drafters of the Copyright Act of 1976 were careful to advise that the fair use doctrine as expressed in Section 107 was intended only as a guideline. "Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case by case basis." Below is an analysis of the four fair use factors.
Purpose and Character of the Use
The first fair use factor generally refers to the function for which the copied material is being used. Since copyright law favors the encouragement of scholarship, research, education and commentary, a judge is more likely to make a determination of fair use if the defendant's use is noncommercial, educational, scientific or historical. However, an educational or scientific use that is for commercial purposes may not be excused. For example, copying a scientist's statements in a cigarette advertisement or the large scale videotaping of educational programming is not considered fair use. Similarly, the fact that a use is not for profit will not necessarily excuse an infringing use. In 1995, this first fair use factor was elevated to the most important factor by the U.S. Supreme Court. What was important stated the high court was that the purpose and character of the use was transformative -- that the alleged infringement made a new statement using the work.
Nature of the Copyrighted Work
The second factor in the fair use determination is the nature of the work that is being copied. For example, a court will generally consider whether the work being copied is informational or entertaining in nature. A judge is more likely to find a determination of fair use if material is copied from a factual work such as a biography than from a fictional work such as a novel. As the Supreme Court stated in its Sony decision, "copying a news broadcast may have a stronger claim to fair use than copying a motion picture." Why? Because copying from informational works such as scholarly, scientific or news journals encourages the free spread of ideas and encourages the creation of new scientific or educational works, all of which benefits the public.
In addition, the court will consider whether the work that is copied is published or unpublished. The scope of fair use is narrower with respect to unpublished works because of the author's right to control the first public appearance of his expression. For example, in the case of Salinger v. Random House, a biographer paraphrased portions of letters written by J.D. Salinger. Although the public could read these letters at a university library, Mr. Salinger had never authorized reproduction or publication of the letters. Despite the scholarly purpose of the proposed Salinger biography, the court would not permit the unauthorized paraphrasing of Mr. Salinger's unpublished letters as a fair use.
Amount and Substantiality of Portion Used
In an another case, however, a court permitted a biographer to quote from six unpublished letters and ten unpublished journal entries of the late novelist, Richard Wright. One factor that weighed in favor of the biographer was the amount and substantiality of the portions that were used. The court determined that no more than one percent of Mr. Wright's unpublished letters and journal were copied. When considering the amount and substantiality of the portion taken, the court considers not just the quantity of the material but the quality of the material taken. For example, the copying of one minute and fifteen seconds of a seventy two minute Charlie Chaplin film was considered substantial and was not permitted as a fair use. In certain rare cases, copying of a complete work may be considered as a fair use. For example, the Supreme Court in the Sony case excused the off the air copying of complete television programs.
Effect of the Use on the Potential Market
The fourth factor in a fair use determination is the effect of the use on the potential market for the work that was copied. One court stated that consideration of this factor is intended to strike a balance "between the benefit that the public will derive if the use is permitted and the personal gain that the copyright owner will receive if the use is denied." A judge must consider the effect on the potential market for the copyrighted work. This consideration goes beyond the past intentions of the author or the means by which the author is currently exploiting the work. For example, in the case of the photograph that was adapted to a wood sculpture, the court recognized the existence of a market for new versions or new uses of the photograph, and determined that the unauthorized use of the photographic image undermined the potential market. Some uses are not considered to undermine the potential market. Copying a magazine cover for purposes of a comparative advertisement is a fair use because the comparative advertisement does not undermine the sales or need for the featured magazine. Similarly, it was the lack of market damage, for example, in the Sony case that convinced the Supreme Court to permit off the air videotaping.
Effect of Acknowledgement of Source Material
It is commonly believed that the unauthorized use of a work is permitted if an acknowledgment is made. This is not true. Acknowledgment of the source material (such as citing the author or the publication) may be a consideration in a fair use determination, but it will not protect against a claim of infringement. When in doubt as to the right to use or acknowledge a source, the most prudent course may be to seek permission of the copyright owner.