Fair Use

Fair Use

Fair Use is a term of art specific to copyright law, and an exception that allows an unauthorized person or entity to copy work that is otherwise protected by copyright. Fair use is codified in 17 U.S.C. § 107.

Fair Use holds that the use of otherwise copyrighted work will not be infringing if it is for a purpose such as criticism, comment, news reporting, teaching, scholarship or research. 17 U.S.C. § 107 also instructs that courts should, in determining whether a use is fair or not, consider (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality 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. These factors are weighed by the courts on a case-by-case basis.

Classrooms

Teachers and professors may make multiple classroom copies of protected works, as long as certain guidelines are followed. First, the copying must meet a test of brevity (less than 1,000 words). Second, the act of copying must have been spontaneous enough so that there was not enough time between the point that the inspiration to use the materials in the classroom struck and the point that the materials had to be used for maximum teaching effect to allow for a proper request for permission. A teacher or professor cannot use copies without permission more than nine times during a term, and only a limited number of these may be from the same author. The teacher or professor must also leave a copyright notice on each copy, the copying may not substitute for the purchase of books, and the teacher or professor may not charge students any more than the actual cost to make the copies.

Purpose and Character of the Use

If the infringing party's use is commercial (money-making) in nature, it would weigh against a finding of fair use; however, courts have held that commercial use is not dispositive (e.g., a use may be commercial but still fall under the fair use exception). See, Campbell v. Acuff-Rose, 510 U.S. 569 (1994). In Campbell, rap group 2 Live Crew and its record company, Luke Skywalker Records, were sued for copyright infringement by Acuff-Rose, after the group released a parody of "Oh, Pretty Woman," titled "Pretty Woman." The Middle District court in Tennessee found for 2 Live Crew, but the Sixth Circuit reversed that decision, holding in part that “the admittedly commercial nature of the derivative work...requires the conclusion that the first factor weighs against a finding of fair use.” Acuff-Rose v. Campbell, 972 F.2d 1429, 1437 (6th Cir. 1992) (citing Sony Corp., 464 U.S. at 449 (1984)). The Supreme Court, while noting that it was “uncontested that 2 Live Crew's song would be an infringement of Acuff-Rose's rights,” held that the song amounted to “commercial parody,” and that the commercial nature of a work does not make the copyrighted work's use “presumptively unfair.” Campbell, 510 U.S. at 578-585, 594.

Courts also determine the character of the infringing use by looking at how transformative it is (this concept is also used when determining market effects for the fourth factor). For instance, use in which an individual has merely copied someone else's poem word-for-word and then published it is not transformative, while a more transformative use might be if the individual turned the words of the poem into a song. The less transformative the infringing use, the more this factor will weigh against Fair Use.

The Nature of the Copyrighted Work

This factor is more nebulous than the others, and it involves discussion regarding public policy and “the value of the materials used.” Folsom v. Marsh, F.Cas. 342, 348 (1st Cir. 1841). The concept is that some copyrighted materials, like fictional stories, better embody what copyright law exists to protect than other materials, like factual stories. See, e.g., Feist Publications v. Rural Tel. Service Co., 499 U.S. 340, 348-351 (1991) (contrasting creative works with bare factual compilations); Stewart v. Abend, 495 U.S. 207, 237-238 (1990) (contrasting fictional short story with factual works); Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 563-564 (1985) (contrasting soon-to-be-published memoir with published speech); Sony Corporation v. Universal Studios, 464 U.S. 417, 455, n. 40 (1984) (contrasting motion pictures with news broadcasts). Generally, the law recognizes a greater need to disseminate factual works and news stories than fictional works, and factual works will thus enjoy weaker copyright protection than fictional ones. See Harper & Row, 471 U.S. at 563.

The Amount and Substantiality of the Infringement

The larger and more important the infringement, the more this factor will weigh against a determination of Fair Use. Consider, for instance, that the infringing author copied pieces of someone else's book, and ask yourself: how much of it did he copy? If it was one sentence then the infringing author may have nothing to worry about; if it was 40% of the book this factor will weigh heavily against a finding of Fair Use. Likewise, ask yourself what the author copied. If it was simply a portion of a paragraph describing the weather on a particular day this factor will weigh less against the infringing author than if he copied, in its entirety, the most poignant and defining speech in the original novel, given by the main character.

The Effect On the Potential Market or Value of the Copyrighted Work

For this factor, a court will look to whether the new work usurps the market for the old work. When weighing this factor the court may only look at potential licensing revenue stemming only from traditional, reasonable, or likely-to-be-developed markets for the original work. A court will find a presumption of harm to the potential market only when the infringing work is nothing more than mere duplication for commercial purposes, but it is still on the defendant to address the derivative work's effect on the market. For instance, if one is selling reprints of someone else's copyrighted photographs of trees without permission, the derivative works (the reprints) are not transformative at all, and will have a large impact on the original author's own market (for photographs of trees) and on the values his photographs. If the infringer was making cups with the prints of trees on them, the court may very well find that the infringer has usurped the original author's markets, even though the use is somewhat transformative, since it is very likely that the original author would consider making additional money off of his photographs by licensing a cup manufacturer to use them. If, however, someone took reprints of those photographs, changed all of the colors, cut them into weird shapes and used them on a giant statue of his own creation, that work is very transformative, and the original photographer is not likely to expand into the giant statue market with his photographs. The statue therefore will not be found to have usurped the author's market. See, e.g., Blanch v. Koons, 467 F.3d 244, (2d Cir. 2006). If a court finds that the allegedly infringing work will have little to no effect on the original author's market, then the weight of any of the other three factors that tend to support a finding against Fair Use will be reduced accordingly (e.g., if a work will have absolutely no effect on the original author's market, the negative effect created by the new author's use of a substantial portion of the original work is greatly reduced).

Parody

Courts will always find that a parody is Fair Use under copyright law. The reason is because there is a strong public policy to encourage the voicing of opinion and criticism stemming from points of view. The courts also note that the author of an original work would probably never license that work to someone who wants to use it to create a parody, since that parody by definition will be critical of the original work.

In Technology

Computer programs normally enjoy weaker copyright protection when it comes to Fair Use, because courts recognize that programs are highly utilitarian, that programs contain many logical, structural and visual display elements that are dictated either by the function to be performed, by efficiency or by other factors, and also that one often cannot see unprotected computer code without also copying protected portions of the same file. See Sony Entm't Corp. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000).

Productive Use

If the alleged infringer's use is beneficial to individuals or society, a court may find that Fair Use applies even if it normally would not. In Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984), the Supreme Court determined that VCRs and the people using them them did not infringe on the copyrights of the owners of television shows in part because there are so many productive uses for VCRs that each benefit society above and beyond the original works.

Market Failure

Finally, a court may also find fair use where market flaws prevent consensual exchange of resources. In Sony, the court also pointed out that, even though many individuals would make non-productive use VCRs (i.e., they would simply copy and watch TV shows), it would be impossible for Sony to attempt to offer licenses to every individual who wished to use copies of the original works in this manner. Id.