Copyright Law

14. What is fair use?

Fair use is a legal defense sometimes used in copyright cases. If the use of a copyrighted work is fair, the use does not violate copyright law. A fair use also does not require permission of the copyright owner or the payment of licensing fees. Fair use typically involves copying of limited portions of a copyrighted work for purposes such as criticism, commentary, news reporting, teaching, scholarship or research.

Fair use is important to journalists because it allows them to quote from copyrighted works without obtaining permission from the copyright owners, which can be time consuming, or paying licensing fees, which can be expensive. For example, fair use allows critics to quote from books, songs and movies that they are reviewing without fear of infringement. It allows commentators and columnists to write parodies of a work by conjuring up enough of the original work so readers will understand the humor.^[23] It also allows a newspaper, magazine or website to reproduce an image from a television advertisement in a news story about Super Bowl advertising. The idea behind the fair-use defense is to balance the rights of the copyright owner and the rights of others to excerpt and comment on the work in the interest of sharing and discussing it.

The outcome of a legal battle involving the fair-use defense can be hard to predict, however, so don’t be overly eager when deciding whether you have a right of fair use.  Be careful.

To decide whether use of a work qualifies as a fair use, courts consider these four factors set out in the Copyright Act of 1976:

• the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.^[24]

Courts resolve fair-use issues by first deciding whether each factor favors a finding of fair use and then making an overall determination whether the use is a fair one. Be clear that applying one factor alone will not tell you whether something is a fair use.

The first fair use factor is the purpose and character of the use. If the use is for a purely commercial purpose, such as copying a photograph onto a T-shirt or a calendar offered for sale, the first factor will weigh against fair use. However, if the use is for a largely educational or informational purpose – such as producing criticism, commentary, news reporting, teaching, scholarship or research to share knowledge – then this factor will weigh in favor of fair use.^[25] 

Also under the first fair use factor, courts examine whether the use of the copyrighted work is transformative. The least fair purpose is simply reproducing a work without adding any new creative effort.  The more transformative the use, the more likely it is to be a fair use.  For example, reproducing another person’s copyrighted photograph to illustrate a story on your website is not very transformative.  However, if you make the photograph part of a collage, that is likely to be deemed transformative.  You have used the original work to create something new, and courts approve of that.

The second factor in the fair-use analysis is the nature of the copyrighted work. Courts consider such qualities as whether the work is fictional or factual, how much effort its creation required and how available it is. If the original work is largely creative or imaginative, such as a painting, novel or song, the second factor will tend to weigh against a finding of fair use. On the other hand, if the original work is primarily factual, such as a news story, biography or textbook, this factor will weigh in favor of a fair use.^[26] Also, if the original work is as yet unpublished and therefore unavailable, an unauthorized use of it is much less likely to be considered a fair use than a similar use of a work that was published several years ago and is widely available.^[27]

The third factor is the amount and substantiality of the portion used in relation to the copyrighted work as a whole.  Here courts compare the portion of the work that is used, in terms of both amount and substantiality, to the original work.^[28]  In terms of the amount, the more you copy from a work, the less likely your use is to be considered a fair use. Quoting a few lines from a 500-page book may be fair.  Quoting half the book or even a chapter probably is not fair.  Quoting half the lyrics in a pop song probably is not fair either. Unfortunately, the law provides no clear guidelines on how much copying is too much, so never use more than you absolutely need.

Qualitatively, the rule is that you cannot use the “heart of the work” without permission.^[29]  The heart of the work might be small in comparison to the entire work, but it is the most memorable part of the work.  This does not mean, however, that a journalist should not quote the best passages from books she reviews or the two-paragraph conclusion from a newsworthy report issued by a non-profit organization.  News reporting is a use favored by copyright law, so you are not likely to be successfully sued for such practices.  Remember, no one factor is decisive in determining fair use.

The fourth fair use factor is the effect of the use upon the potential market for or value of the copyrighted work. If the use harms the value of or potential market for the original — for example, publishing excerpts from an upcoming tell-all book without permission — the fourth factor will not favor fair use^[30] because the publisher will have lost the ability to sell those excerpts to a magazine of its choice.^[31] If there is little or no risk of harm to the potential market for the original work, a court is more likely to allow the use. For example, when an artist complained that use of images of his artwork in a political pamphlet was not a fair use, a court rejected his claim, largely on the grounds that the pamphlet posed no threat to his ability to sell his artwork.^[32]

Incidental or “fortuitous” uses are also permissible. For example, a copyrighted work of art may appear in the background of a photograph of a news event. In such situations, there is no copyright violation.^[33]

^References