by Gretchen McCord, September 2015

Fair use is the epitome of the copyright balancing act—balancing the rights of owners of copyright with those of users of protected works. The purpose of fair use is to provide a tool that will allow uses of protected works that would otherwise infringe copyright when allowing those uses goes further towards promoting the goal of copyright law ("to promote the progress of science and the useful arts") than would disallowing the uses.

About Fair Use           

Fair use judgments are made on a case-by-case basis. This means there are no rules that say, for example, as long as you copy less than 10% of a book, your use is fair. Each use is evaluated on its own. The process for making this evaluation is enunciated in Section 107 of the Copyright Act.

The preface to Section 107 provides a non-exclusive list of illustrative uses that may be considered fair use: criticism, commentary, news reporting, teaching, scholarship, and research. This list serves only as an example of the types of uses fair use is meant to address. It is not inclusive, so other uses also may be considered fair. Just as importantly, it does not mean that those uses listed will always be fair. 

The statute then sets out four factors that must be considered in determining whether a use is fair. The case-by-case analysis of these four factors must be made for every claim of fair use. The court may also consider other factors that it deems relevant. 

The fair use judgment is made on a spectrum, both for each factor and in determining the final assessment. Rather than asking whether a factor favors fair use, the appropriate question is "How strongly does this factor favor or disfavor fair use?"

The final determination of whether a use is fair must consider the assessment of each factor in the context of the big picture of the particular situation.  It is not simply a matter of adding up how many factors favor and how many disfavor fair use. In fact, it is possible for a court to hold a use fair even if more factors disfavor fair use. The ultimate question is: Would allowing this use go further towards promoting the goals of copyright law than would disallowing the use?

The Fair Use Factors

1. Purpose and Character of the Use

The purpose and character of the use factor looks at whether the use is (1) commercial or for a nonprofit educational purpose and (2) transformative. Uses that are closer to being nonprofit educational in character or purpose are more likely to held fair than those that are closer to the commercial end of the spectrum. 

The concept of "transformative use" is widely misunderstood, in part because the courts were confused for some time. The seminal transformative use case involved a parody of Roy Orbison’s song "Pretty Woman," recorded by rap group 2 Live Crew. The 2 Live Crew song used the Orbison music (in rap style, of course) but with the group’s own original lyrics. The new lyrics painted a very different picture of romantic love than did the original, "'quickly degenerating into a play on words, substituting predictable lyrics [of the original] with shocking ones' to show 'how bland and banal the Orbison song' is." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 573 (1994). In effect, 2 Live Crew used Orbison’s music to make a social commentary on the content of the original.

The Supreme Court found 2 Live Crew’s use to be "transformative," which it defined as a use that does more than “merely ‘supersede’” the objective of the original work but "instead adds something new, with further purpose or different character, altering the first with new expression, meaning, or message." Id. at 579. Moreover, the Court said, "the goal of copyright … is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine…" Id.

After considering all four factors, the Court held 2 Live Crew’s use to be fair. Although it gave great weight to the transformative purpose of the use, the Campbell Court made a point of stating that "such transformative use is not absolutely necessary for a finding of fair use." Id.

Since Campbell, the transformative use question has increasingly become the center of attention in the fair use analysis, with a range of court decisions reflecting confusion as to what, exactly, must be “transformed”: the content or format of the original work, the purpose for which it was used, or both.

Over the past ten years of jurisprudence, and across the courts, a more clear definition has developed: If "the defendant used the copyrighted work for a different expressive purpose from that for which the work was created," the use is likely to be held transformative. Neil Netanel, Making Sense of Fair Use, 15 Lewis & Clark L. Rev. 715, 768 (2011) (emphasis added).

2. Nature of the Copyrighted Work

In determining the nature of the protected work, courts consider whether the work is factual or creative. Protecting factual works encourages the publication and dissemination of hard knowledge. At the same time, however, we consider the ability to access and use works of hard knowledge to be more important to education and society, and thus to the progress of science and the arts, than the ability to access and use purely fictional works. Therefore, courts are more likely to judge use of a factual work to be a fair use than use of a purely fictional work.

Courts also consider whether a work is published or unpublished; if the work is unpublished, this factor is likely to disfavor fair use.

3.   Amount and Substantiality of the Portion Used in Comparison to the Work as a Whole

This factor is about both quantity ("amount") and quality ("substantiality"). It considers not only how much of the original the defendant used, but also the specific content from the original used by defendant. But the key is applying the answers to these questions to the context of the use. The final questions are: did the defendant use more than was necessary to achieve her purpose? Did the defendant use content from the work that was not necessary to achieve her purpose?

In some cases, using the entirety of a work may be necessary. A great example is the use of entire images in results of Google Images search. Google was sued for copyright infringement based on this use. The court found the uses to be fair (remember the court has to consider all four factors) and did not hold the third factor against Google, because if Google were to less than the whole, it would not have been able to achieve the purpose. (Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir 2007))  Think how useless an image search engine would be if the results came back in half or a third of an image!

In contrast, taking even a very small portion of a work may be held to not constitute fair use, if that portion constitutes a particularly valuable piece of the work and that specific portion was not necessary for the defendant to achieve his purpose. The Supreme Court ruled that publication by The Nation of a very small portion (less than 1%) of an unpublished biography of Gerald Ford was not a fair use.  In a review of the book, the magazine had quoted the small portion that discussed Ford’s pardon of Richard Nixon. On the third factor, the Court noted that the portion taken constituted “the heart of the book,” and, importantly, copying that particular portion was not necessary.  (Harper & Row, Publ’r, Inc. v. Nation Enter., 471 U.S. 539 (1985)) Certainly an author of a book review can quote more than 1% of a work if it is necessary to support statements and opinions expressed in the review, but in this case, the magazine has simply “scooped” the book publisher by publisher the meatiest part of the book before it had been released.

4.  Effect on the Potential Marketplace for the Work

The inquiry here is: how great was the effect of the use on the potential market for the work? Note that the focus is on potential market harm, not actual harm. It is not necessary for the defendant to be making money from his use or for the copyright owner to be actually losing money. 

Harper & Row, discussed above, is a good example. The defendant magazine was not distributing copies of the original work, but the importance of the pieces copied were held likely to damage the market for the entire work, since the copied portions were considered to be those of most interest to the buying public. Thus, even though copies may be used for non-profit purposes, the possibility of market damage still exists. 

It is important to correctly identify the marketplace for the work at issue. For example, a few decades ago, in a case involving copying of recorded music, the marketplace of interest would likely have been the market for CDs, whereas today the marketplace would likely be for that for individual songs.  In the former case, this factor might have favored fair use, as copying one song might not have had much effect on the marketplace for the entire CD—unless that song was the top and only hit from the entire album.  In today’s marketplace, this factor would probably disfavor fair use, because the use was more likely to harm the marketability of the individual song.

A Word About Fair Use Guidelines

Various guidelines are available to help interpret and apply fair use to specific situations.  It is important to remember, however, that guidelines are not law. Furthermore, guidelines are intended to delineate the minimum amount of copying or other use that should be allowed. Unfortunately, too many librarians (and others) believe that guidelines state the maximum use allowed. You should approach use of guidelines knowing that although there a use falling within guidelines will very likely be considered a fair use, uses that go beyond the guidelines are often considered fair use. 

Fair use is all about the specific situation. Its value is in its flexibility, so trying to create black-and-white quantitative limits greatly undermines the purpose of fair use as well as its power.