The 'Fair Use' Rule: When Use of Copyrighted Material Is Acceptable

By Richard Stim, Attorney

Copyright law bestows certain exclusive rights on creators. For example, under 17 U.S. Code § 106, copyright holders have the exclusive right to reproduce their work, create derivative works, and perform the work publicly. But these exclusive rights are not absolute. The doctrine of fair use creates important exceptions.

Understanding Fair Use

Writers, academics, and journalists frequently need to borrow the words of others. Sooner or later, almost all writers quote or closely paraphrase material that someone else has written. For example:

• Andy, putting together a newsletter on his home computer, reprints an editorial he likes from a daily newspaper.
• Phil, a biographer and historian, quotes from several unpublished letters and diaries written by his subject.
• Regina, a freelance writer, closely paraphrases two paragraphs from the Encyclopedia Britannica in an article she's writing.
• Sylvia, a poet, quotes a line from a poem by T.S. Eliot, by way of homage, in one of her own poems.
• Donnie, a comedian, writes a parody of a famous song that he performs in his comedy act.

Assuming the material quoted in these examples is protected by copyright, do Andy, Phil, Regina, Sylvia, or Donnie need permission from the author or other copyright owner to use it? It may surprise you to learn that the answer is "not necessarily."

Under the "fair use" defense, another author may make limited use of the original author's work without asking permission. Pursuant to 17 U.S. Code § 107, certain uses of copyrighted material "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

As a matter of policy, fair use is based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. The fair use privilege is perhaps the most significant limitation on a copyright owner's exclusive rights. If you write or publish, you need a basic understanding of what does and does not constitute fair use.

Uses That Are Normally Considered Legally "Fair"

Subject to some general limitations discussed later in this article, the following types of uses are usually deemed fair uses:

• Criticism and commentary: For example, quoting or excerpting a work in a review or criticism for purposes of illustration or comment would normally be fair use. A book reviewer would be permitted to quote passages from a book in a newspaper column as part of an examination of the book.
• News reporting: Summarizing an address or article, with brief quotations, in a news report constitutes fair use. A journalist would be permitted to quote from a political speech's text without the politician's permission.
• Research and scholarship: Quoting a short passage in a scholarly, scientific, or technical work for illustration or clarification of the author's observations would be deemed acceptable. An art historian would be able to use an image of a painting in an academic article that analyzes the painting.
• Nonprofit educational uses: When teachers photocopy limited portions of written works for classroom use, this is normally acceptable. An English teacher would be permitted to copy a few pages of a book to show to the class as part of a lesson plan. (Note that she would not be permitted to photocopy the entire book).
• Parody: Parody is a work that ridicules another, usually well-known, work by imitating it in a comic way. A comedian could quote from a movie star's speech in order to make fun of that star.

There are several factors that a court will consider when determining whether an instance of infringement qualifies as fair use. Non-commercial use weighs heavily in favor of finding that the infringement is fair use. Violations often occur when the use is motivated primarily by a desire for commercial gain. The fact that a work is published primarily for private commercial gain weighs against a finding of fair use.

For example, using the Bob Dylan line "You don't need a weatherman to know which way the wind blows" in a poem published in a small literary journal would probably be a fair use; using the same line in an advertisement for raincoats probably would not be.

Similarly, a use that benefits the public or that lends to education also weighs heavily in favor of a finding of fair use. For example, in its advertising a vacuum cleaner manufacturer was permitted to quote from a Consumer Reports article comparing vacuum cleaners. Why? The ad significantly increased the number of people exposed to the Consumers Reports' evaluations and thereby disseminated helpful consumer information. The same rationale probably applies to the widespread practice of quoting from favorable reviews in advertisements for books, films, and plays.

Copying From Unpublished Materials

When it comes to fair use, unpublished works are inherently different from published works. Publishing an author's unpublished work before he or she has authorized it infringes upon the author's right to decide when and whether the work will be made public.

Some courts in the past held that fair use never applies to unpublished material. However, in 1991 Congress amended the fair use provision of the U.S. Copyright Act to make clear that the fact that a work is unpublished weighs against fair use, but is not determinative in and of itself.

For more detailed information on fair use and copyrighted material, see Getting Permission: How to License & Clear Copyrighted Materials Online & Off.