FAIR USE
 | The Fair Use Privilege in copyright law is one of the most important limitations on a the exclusive rights of a copyright owner. Fair Use began as a common law, or judge-made, equitable rule of reason. In the Copyright Act of 1976, Congress codified the fair use doctrine in § 107 of the Act. In the legislative history, Congress stated that this was done not to change, narrow or enlarge the doctrine, but rather to provide statutory recognition for this doctrine's important role in copyright. Congress intended the courts to continue to develop the doctrine on a case-by-case basis. |
Section 107 states:
§ 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
The Preamble:
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There are three important statements in the Preamble of section 107. First, Congress states that a fair use of a copyrighted work is not an infringement of copyright. There is no limitation on this statement and thus fair use may limit any and all of the exclusive rights and may apply to any type of copyrightable subject matter, e.g., literary works, musical works, audiovisual works, etc. |
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Second, although the statute does not specify what uses are fair, Congress did provide illustrations of types of uses that had historically been fair under certain circumstances. These examples are not determinative. Some uses that fall within those illustrations may not be fair and other uses that do not fit within these illustrations may be fair. All of the illustrations listed may be generally viewed as socially productive uses. Yet, a determination of whether a particular use within these illustrations or outside of those illustrations is a fair use must be resolved by considering the third key point in the Preamble. |
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The last sentence states that: "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —" Any particular use is required to be analyzed through the inquiries listed in the four statutory factors. Through these factors, we examine the use from different perspectives to weigh the factual context of the use in order to reach a conclusion about fairness. While many people believe that anything they want to do is fair, by examining fairness from different objective perspectives, a user is better able to assess whether a reasonable person would think the use was fair in light of the purpose of copyright. |
| Fair use has been equated to the Golden Rule in copyright: use from others only to the extent that you would have others use from you. But even if you would not grant permission for the use, the use may nonetheless be a fair use. |
The Factors:
The fair use analysis is the consideration of a use of copyrighted work through the lens of the mandatory factors in a particular factual context. The factors are not a checklist, but rather different perspectives on the question of whether the use is fair. While many courts assess the factors as discreet determinations, the intended approach is to use the factors as a means of obtaining and analyzing relevant information for the inquiry. Rather than viewing the factors as having independent weight, one factor can yield information that is relevant to the inquiry in the other factors. For instance, once we know the purpose of the use, we can understand how much would have to be reasonably used to achieve that purpose. Similarly, understanding aspects of the nature of the work used can inform the analysis of the relevant markets that encouraged the creation of the work being used.
The statutory articulation of the factors is quite vague and ambiguous. Some would find this to be a defect in the law, since ambiguity generates uncertainty. Consider, however, that it is the general nature of the inquiry that allows this unique American doctrine to be so flexible. The flexibility of fair use is one of the most important attributes of this doctrine. Since technology and society are constantly changing, the fair use doctrine allows the courts to develop this flexible doctrine in light of these changes, and in light of the purpose of copyright law itself.
While the only true way to understand the factors is through their application to a host of varying factual situations, it is possible to note some key considerations that courts have considered under each of the factors. The factors are not static and each judicial decision has the capacity to introduce new considerations, but some of the major considerations may prove helpful to someone trying to assess a fair use question.
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes:
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Looks at the defendant’s purpose for using the expression of another? |
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Was the use transformative or does the use merely supersede the original? |
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Was the use socially productive? |
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Was the use commercial or non-profit use? |
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Did the defendant act in good faith? |
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Was the use necessary (e.g., parody or reverse engineering)? |
(2) the nature of the copyrighted work:
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Examination of characteristics of the work used? |
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Was the work predominantly creative or was it factual in nature? |
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Was the work published or unpublished? |
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Was the work freely available for use by the public, e.g., on the web (Kelly) or freely broadcast (Sony)? |
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Other characteristics of the type of work or the particular class of work at issue, e.g., unique characteristics of computer programs (Connectix) or how is this type of work generally exploited (Perfect 10)? |
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole:
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How much of the original work was used by the defendant? |
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Was the amount used more than necessary or reasonable in relation to the purpose? |
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Was the amount use qualitatively significant, i.e., the heart of the work? |
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Based on the type of work used, did the user limit the amount used (e.g., how can less than the whole of a photo be use? Answer: degraded quality or thumbnail)? |
(4) the effect of the use upon the potential market for or value of the copyrighted work:
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Does the use supersede the original work? |
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Does the use affect the traditional or likely markets for the work? |
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Does the use affect the value of the work used? |
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Are there derivative or established licensing markets that are affected by the use? |
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If the use at issue were to become widespread, would it have an impact on the incentive to create the original work? |
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Does the use affect an ancillary market and what’s the relative importance of this market in relation to the purpose of the use? |
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Was the harm related to irrelevant concerns, e.g., an anticompetitive purpose or harm as a result of criticism? |
Once again, the answer to any one of these questions is not determinative of the analysis or even the weight within the factor. Each factor may contain as many sub-factors or intra-factor questions as might be relevant to the ultimate determination. For instance, the fact that a use has an effect on a copyright owner's market does not mean the use is unfair. This finding and further inquiry on the importance of this market to the purpose of copyright -- to encourage creative authorship -- must then be balanced with the social importance of the purpose of the use, the effect of such harm on how other copyright owners of the same class of works typically exploit their work, would the harm have been limited or eliminated by using less of the work, was use of less of the work possible, etc....? The factors are extraordinary flexible and are only limited by their application. There are many other considerations that may arise in a particular factual situation. These questions merely provide a framework for the analysis.
For some further consideration of how the analysis works, a review of the Supreme Court and other cases, particularly the Campbell decision would be well worth the time taken. In addition, I have written articles on educational fair use and on the second fair use factor that might be helpful.
The Supreme Court Development of the Factors:
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The four fair use factors are the heart of the fair use inquiry. They have their roots in Justice Story's 1841 decision in Folsom v. Marsh, but have been developed by subsequent district and appellate court decisions, which in turn have been heavily influenced by three major Supreme Court decisions on fair use. |
| In Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), Universal brought an action for contributory copyright infringement against Sony for manufacturing and distributing the Betamax video tape recorder (VTR). Universal claimed that consumers had been recording some of Universal's copyrighted works that had been exhibited on over-the-air television broadcast and that these reproductions of the tv programming infringed Universal's copyrights. In order for Sony to be liable for contributing to the alleged infringement by consumers, Universal had to prove that consumers' use of the Betamax VTR was an infringing use (contributory infringement require proof of an underlying direct infringement). The District Court denied Universal all relief, holding that noncommercial, private, time-shifting of material that was freely offered to these consumers over the public airwaves was a fair use of the copyrighted works and did not constitute copyright infringement. The Court found that the predominant use of the Betamax was private, non-commercial, time-shifting and that Sony could not be held liable as a contributory infringer even some users used the product in an infringing manner. Since this product was capable of substantial noninfringing uses, and since the predominant use was noninfringing, the Court found in favor of Sony. |
| In Harper
& Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct.
2218 (1985), former President Ford contracted with Harper & Row (H&R) to publish his memoirs and H&R contracted with Time Magazine for pre-publication serialization rights. Shortly before the Time Magazine publication of excerpts of the unpublished memoir, a source provided The Nation Magazine with, what the Court described as a "purloined copy" of the unpublished Ford manuscript. The Nation used this questionable access to publish excerpts before Time Magazine, and thereby scooped all other sources about President Ford's reasons for pardoning President Nixon after Watergate. As a result of the publication of The Nation's article, Time canceled the contract and refused to pay the remaining $12,500 to Harper & Row. H&R then brought suit against the publishers of The Nation, alleging copyright infringement. The Court held that The Nation's use of the copyrighted excerpts from President Ford's copyrighted manuscript constituted an infringement. The Supreme found that The Nation's publication, while news reporting, was a commercial endeavor that weighed against fair use. The Court also found that the unpublished nature of the work was critical, because Ford never received the opportunity to exploit his right of first publication and that this too heavily weighed against fair use. Third, although only 300 - 400 words of Ford's manuscript were used by The Nation, this relatively small amount quantitatively constituted the "heart of the work" and was thus a qualitatively substantial taking. Finally, the Court found that evidence of actual harm as a result of Time Magazine's cancellation of the contract proved that the use had an adverse affect on the market for the work. Based on all of these factors, the Court held that the Nation's use was not a "fair use" of the copyrighted work. |
| In Campbell
v. Acuff-Rose, 510 U.S. 569 (1994), Acuff-Rose filed suit against the
members of the music group 2 Live Crew and their record company, claiming
that 2 Live Crew's song, "Pretty Woman," infringed Acuff-Rose's
copyright in Roy Orbison's "Oh Pretty Woman." In a thoughtful
decision by Justice Souter, the Court held that the use of the work was a
parody. Parody, as a transformative form of criticism, has to use the expression of the
subject of the parody in order to conjure up the original work. The
necessity of some copying in relation to parody was contrasted with satire
in which another's work might be used simply as a vehicle for some social comment
unrelated to vehicle used. [The Court did not say that a satire cannot be a
fair use, but only that it requires a showing of why the particular use of
the work incorporated into a satire is fair.) While the Court stated that one cannot use the
work of another simply to "avoid the drudgery of coming up with
something new," a parody requires some use of the work being
criticized in order for the purpose of the parody to be understood. The
Court also stated that success of the parody is not a relevant concern,
citing Justice Holmes' statement that judges should not be the arbiters of
aesthetic merit. In relation to the Court's emphasis on transformative uses,
the Court also limited the significance of the commercial/nonprofit
distinction by clarifying previous statements by the Court in Sony.
The Court stated that no hard presumptions by the commercial character of a
use, particularly when the use is transformative. The Court remanded the
case for reconsideration of the amount and substantiality of the use and the
effect on the market for derivative rap versions of the song. The case was
ultimately settled by the parties. |