Fair Use (17 U.S.C. § 107) #
Fair Use is not infringement.
Congress determined that certain uses of a copyrighted work should be permitted without obtaining permission of the copyright holder. This is known as “fair use” and is established under 17 U.S.C. 107.
Fair use includes, but is not limited to, use for purposes of:
- criticism
- comment
- news reporting
- teaching (including multiple copies for classroom use)
- scholarship
- research
Fair Use Factors #
The following factors are weighed in determining whether the use of someone else’s work constitutes fair use.
(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
Courts look at how the party claiming fair use is using the copyrighted work. In general, they are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and that all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below.
Additionally, “transformative” uses are more likely to be considered fair. (See, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).) Transformative uses are those that add something new, with a different character, “altering the original with new expression, meaning, or message” and do not substitute for the original use of the work. The more transformative the work, the less significance the other factors have.
(2) The nature of the copyrighted work
This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole
Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. There are exceptions, and some courts have found use of an entire work to be fair under certain circumstances. On the flip side, using just a small amount of a copyrighted work might not be determined to be fair if the selection was an important part, or the “heart,” of the work.
(4 ) The effect of the use upon the potential market for or value of the copyrighted work
Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.
The statute also provides that, “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.”
