Fair Use: The Four Factors Courts Consider in a Copyright Infringement Case

A determination of fair use generally occurs during a copyright infringement lawsuit.

Normally, copyright law gives creators certain exclusive rights over their creations, whether books or films or paintings. If someone comes along and "steals" your copyrighted work, that person could be found liable for their infringement. However, the doctrine of fair use is one of the most commonly used defenses to claims of copyright infringement.

Under certain circumstances, the unauthorized use of copyrighted materials is deemed to be excusable when the infringer's use qualifies as "fair." When will courts consider a particular use to be "fair"?

How Is Fair Use Determined?

A determination of fair use usually occurs during a copyright infringement lawsuit. The holder of a copyright (the plaintiff) will accuse someone of infringing on protected work (the defendant). At this point, the defendant accused of infringement may argue that the infringement is excused under the fair use doctrine. This doctrine is derived from 17 U.S. Code § 107, part of the Copyright Act of 1976.

A court faced with this argument weighs four factors, as discussed below. If the weight of the factors is in favor of the defendant (who is using the plaintiff's copyrighted work without permission), the court may decide that the unauthorized use of the material is permitted. In this case, the defendant may continue using the work without paying money damages to the plaintiff.

In order to guide judges in making determinations of fair use, the drafters of the Copyright Act included four factors:

  1. the purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes
  2. the nature of the copyrighted work
  3. the amount 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.

The drafters of the Copyright Act were careful to advise that the fair use doctrine expressed in Section 107 was intended only as a guideline. Beyond a broad statutory explanation, courts are free to adapt the doctrine to particular situations on a case-by-case basis.

In theory, all four factors are equally important. In practice, however, courts often focus on the first and fourth factors, considering the nature of the infringement and the effect on the copyright holder's market. The U.S. Supreme Court has noted that "transformative" uses of copyrighted work can deeply affect the analysis of the first factor. And courts often focus on the impact of the use on the potential market for the original, under the fourth factor, as a proxy for the harm done by the infringement.

Below is an analysis of the four fair use factors.

1. Purpose and Character of the Use

The first fair use factor refers mainly to the function for which the copied material is being used. Since copyright law favors encouraging 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 by the fair use doctrine.

For example, using an image of a painting found in an art history textbook would likely be considered fair if the author is making scholarly commentary on the work. By contrast, using that same copyrighted painting on an advertisement for an unrelated product would not be considered fair use.

Similarly, the fact that a use is not for profit will not necessarily excuse infringement. If, for example, a teacher makes photocopies of a whole novel for students her class, this would not be considered fair use even if it is educational.

In 1995, this first fair use factor was elevated in importance by the U.S. Supreme Court. What was key, stated the high court, was that the purpose and character of the use was transformative; that is, that the alleged infringement made a new statement using the work.

For example, if an artist were to take a portion of another artist's copyrighted painting and incorporate that portion into his or her own work to make a commentary on it, this would be a legally protected activity.

2. 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 ordinarily consider whether the copied work is informational or entertaining in nature. A judge is more likely to find a determination of fair use if material was copied from a factual work, such as a biography, than from a fictional work, such as a romance novel or horror movie.

As the Supreme Court stated in Sony Corp. of America v. Universal City Studios, Inc., "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 benefit 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 or her expression.

The case of Salinger v. Random House provides an example. A biographer was sued for having 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 their reproduction or publication. 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.

3. Amount of Copyrighted Work Used

How much of the original work did the infringer take? One sentence of a book, or an entire chapter? A five-second clip of a film, or the whole movie? One detail of a painting, or the entire painting? This factor will also weigh on a judge's mind.

In one case, a court permitted a biographer-defendant to quote from six unpublished letters and ten unpublished journal entries by the late novelist Richard Wright. One factor that weighed in favor of the biographer was the amount used. The court determined that no more than 1% of Mr. Wright's unpublished letters and journal were copied.

When considering the amount and "substantiality" of the portion taken, the court looks at not just the quantity of the material but its quality. For example, the copying of one minute and 15 seconds of a 72-minute Charlie Chaplin film was considered substantial and was not permitted as a fair use.

In 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.

4. Effect of the Use on Potential Market for the Work

The fourth factor in a fair-use determination is the effect of the use on the potential market for the work that was copied. 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 author's or creator's past intentions or the means by which he or she is currently exploiting the work.

For example, in a case concerning a 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. The ultimate question is whether the infringer's conduct will harm the original copyright holder.

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. No customer would not buy the magazine merely because of the advertisement. Similarly, it was the lack of market damage in the Sony case that convinced the Supreme Court to permit off-air videotaping.

Acknowledging Source Material Is Not Enough

Many nonlawyers believe that the unauthorized use of a copyrighted work is permitted if an acknowledgment is made as to the source. This is not true.

Acknowledgment of 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. For example, if you record a feature film in a theater and then sell DVDs of that recording, it will not help your case that you acknowledge the copyright owner on the cover of the DVD. It would still be an impermissible infringement.

Nevertheless, crediting the original source has benefits. Often, an author or artist will be flattered at being recognized, and this recognition will lessen the "sting" of seeing the work reproduced without permission. Crediting the source will also make it clear to the public (and the courts) that you are not trying to claim that the original work is really yours.

The safest course of action is always to ask for permission from the copyright holder before using the work, even when you believe that your use would be "fair."

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