Copyright Fair Use: An Explanation by Skilled Copyright Attorneys

Are you developing a project that makes use of material created by others? Do you remember receiving photocopies of articles or excerpts of books in school? Did you ever record a movie or show onto a digital video recorder (DVR) without paying for the copy created on the DVR? Each of these instances may involve the use of material protected by copyrights. However, such uses of copyright material are typically not treated as infringement. Copyright law allows for the fair use of copyrighted material in a reasonable manner without the owner's consent for valuable social, cultural, or other worthy or benign purposes. Fair use is an exception to copyright infringement. The scope of fair use of copyrighted material is broad, extending to many non-commercial and even some commercial uses of copyright materials. This article provides an overview of the fair use doctrine.

Copyright fair use is a legal doctrine codified in 17 U.S.C. § 107 that serves as a limitation on copyright protection, balancing the rights of copyright owners with the public interest in accessing and using creative works for purposes such as education, criticism, research, and news reporting. The doctrine recognizes that certain unauthorized uses of copyrighted material can be socially beneficial and should not require permission from the copyright holder. By allowing limited use without infringing on the creator's exclusive rights, fair use promotes freedom of expression, innovation, and access to information.

The primary purpose of fair use is to encourage creativity and the dissemination of knowledge while preventing the monopoly of ideas and information. It fosters public discourse by enabling commentary, criticism, and academic inquiry without fear of legal repercussions. Additionally, fair use plays an essential role in technological and cultural development, allowing creators to build upon existing works to create new, transformative content.

Fair use is an affirmative defense. This means that if copyright infringement has occurred, it may be justified under the fair use doctrine. An effective fair use argument can negate an otherwise valid claim of copyright infringement. Fair use is evaluated on a case-by-case basis, and thus there are no clear black-and-white cases of fair use. The use of a copyrighted work must be analyzed under the four fair use factors.

Section 107 of the 1976 Copyright Act sets forth six general usages of copyrighted works that may be excepted from copyright infringement: criticism, comment, news, reporting, teaching, and scholarship or research. Congress has generally deemed these uses to yield social, political, and cultural benefits that may outweigh any loss to the copyright owner. However, these are not blanket exceptions and they are not an exclusive list. Each potential fair use situation must be evaluated on its particular facts and circumstances.

Fair use is a mixed question of law and fact, placing the ultimate question of whether there is fair use in hands of the presiding judge, once the jury has decided the relevant factual inquiries. The judge analyzes the factual findings through a set of factors to determine whether the benefits to the unauthorized user outweigh the costs to the copyright owner, justifying a finding of fair use. There are four factors provided in Section 107 as follows:

The remainder of the article will explore the four factors and how they apply to varying uses of copyrighted material. However, it should be noted that the fair use doctrine is flexible by design. There are other relevant circumstances that may be considered in determining whether fair use applies to a particular situation. The ultimate question of whether a particular use is fair use can only be answered by a court.

Judges typically apply all four factors in deciding a case, but the relative weight attached to each factor differs depending on the use of the copyrighted material. For example, the factors are applied quite differently in private uses of copyrighted material versus public uses. In private uses, the first and fourth factors are typically given significantly more weight than the other two. Moreover, transaction costs of negotiating authorized use are considered. In cases involving public use, all factors can play significant roles in the overall analysis to determine fair use. Furthermore, the application of these factors can overlap in part. For example, whether the author's work is unpublished goes to the nature of the work, but also plays heavily in the fourth factor because the infringer has taken away the marketplace for the author by being the first to publish the work. Thus, in reading the following breakdown of the four factors, understand each as necessarily entangled with one another in the judges' analysis, unless otherwise specified.

This factor is two-pronged and considers both (1) the commercial or noncommercial character of the use, and (2) the educational or other socially valuable purpose of the use. Neither factor is wholly determinative.

The law generally favors non-commercial use over commercial uses. Thus, uses for non-profit purposes, journalism, educational use, research, or social/political/ personal comment, are much more likely to be considered fair use. However, in some instances, the commercial/ noncommercial distinction by itself provides little insight into the benefits of the user versus the losses of the copyright owner. That being said, the weight given to the distinction depends in large part on whether the unauthorized use is public or private. If the use is for commercial gain rather than for educational, non-profit, or transformative purposes, courts are less likely to find fair use.

Often the nature of use factor is decided based on whether the defendant's use is “transformative”. A lack of transformative use—where the new work does not significantly alter or add new expression, meaning, or message to the original—also weakens the defense. The analysis implies the question "does the use of copyrighted material add something new or contribute to some further purpose, or imbue the original with new expression, meaning, or message?" The more transformative the use, the less significance will be lent to other factors. Examples of a transformative use include comment, criticism, and parody of the original work. However, even if a work falls into one of these categories, a court may still find the use of the copyrighted material to be infringement. For instance, parody is in the eye of the beholder and not all parodies are certain to be considered fair use.

In the Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc. case, cartoon parodies of the famous Cabbage Patch Kid dolls, referred to as Garbage Pail Kids were found to be infringements rather than a fair use. The Garbage Pail Kids were clearly parodies of Cabbage Patch Kids, as they featured grotesque images and names that starkly contrasted with the wholesome image of the Cabbage Patch Kid dolls. Even so, the court saw the Garbage Pail Kids as a close copy of the Cabbage Patch Kids (3rd factor favored plaintiff) and an attempt to trade on the popularity of the Cabbage Patch Kids (1st factor favored plaintiff) in the same target demographic (4th factor favored plaintiff). In general, the court found little social value in the Garbage Pail Kids and saw the product as crude copy of a successful product designed solely for commercial gain. This implies that if the use of the copyrighted work is unsavory, it is more likely to be considered infringing.

A recent Supreme Court case dealt with transformative use in context of an Andy Warhol screen print that was based on a photograph of Prince, the musical artist, taken by Lynn Goldsmith in 1981. Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023). The screen print did not change the posture, expression, or other general aspects of the photograph, but gave the photograph the typical colorful Andy Warhol treatment. The majority opinion, written by Justice Sotomayor, focused on the first fair use factor, emphasizing that both Goldsmith's photograph and Warhol's image served the same essential purpose: to depict Prince in magazine articles. While acknowledging some differences in aesthetics and artistic message, the Court found these insufficient to establish transformative use in this commercial context. The Court stressed that licensing the image to Condé Nast for commercial purposes weighed against fair use.

In the context of musical works, the Supreme Court found musical parody to be fair use where it is sufficiently transformative. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). Acuff-Rose Music, Inc. owned the copyright to Roy Orbison's song "Oh, Pretty Woman." 2 Live Crew, a rap group, sought permission to create a parody of the song. Acuff-Rose denied permission, but 2 Live Crew released their version anyway. The 2 Live Crew version, also titled "Pretty Woman," used the original song's bass riff and the first line of lyrics but changed the other lyrics and music to create a comedic and critical commentary on the original. The Supreme Court held that all four fair use factors must be weighed together, and no single factor is determinative. While commerciality is a relevant consideration, it does not create a presumption against fair use, especially in the context of parody. The Court emphasized the transformative nature of parody, which uses the original work to create new meaning and commentary. The Court also noted the importance of considering the amount and substantiality of the portion used in relation to the copyrighted work as a whole, as well as the potential impact on the market for the original work.

Using copyrighted content purely for entertainment or decorative purposes without adding substantial new meaning, as well as failing to provide critical or educational context, weighs significantly against fair use.

The focus here is generally on whether the copyrighted material is (1) factual or creative, and (2) whether it is published or unpublished.

Copyright law values the free flow of information and protects expressive and creative content. There is therefore very limited protection for the use of copyrighted factual works. In contrast, creative works enjoy more protection from unauthorized uses. In the recent Google LLC v. Oracle America, Inc. case decided by the US Supreme Court, the court found that the portions of Oracle's software that Google was using (Application Programming Interfaces – “API”) were in the nature of uncopyrightable ideas. Google LLC v. Oracle Am., Inc., 593 U.S. 1 (2021). Specifically, Google uses the declaring code of Oracles API to enable interfacing between the Android system and applications designed for Android. The declaring code provides a set of commands that allow app developers to code in Java (Oracle's coding language) to produce a software application that can be integrated into the Android platform. Google used about 11,500 lines of declaring code from the API, which constituted about 0.4 percent of the API at issue in the case. The court found such code to be organizational and structural in nature and this factor weighed heavily against Oracle in the court's finding of fair use.

More protection is afforded to unpublished copyrighted works. The fact that it is unpublished will weigh against the finding of fair use because the law gives some deference to the author control over when their work is to be published. However, in the case that the work is unavailable because it is out of print and generally unavailable on the market, its unavailability will weigh in favor of a finding of fair use.

Generally speaking, the greater the amount of the copyrighted material that is used, the less likely fair use will be found. However, this is a bit of an oversimplification because courts tend to focus on the importance of the portion used, rather than solely on the amount used. If the portion used is of critical importance to the copyrighted work, even one line pulled from a book or journal could be considered an infringement.

This is the most significant factor weighed in a judge's analysis – it is a measure of the harm to the author. The question is whether the market or potential market for the copyright owner's work is injured as a result of the unauthorized use of the work. Courts typically focus on the normal market for the copyrighted work in applying this factor. A normal market is one in which the copyright owner uses their copyrighted material, or would reasonably be expected to use their copyrighted material. For example, the use of copyrighted lyrics for a parody is less likely to be considered fair use if the parody appears in American Songwriter magazine, whereas the use would more likely be considered fair if it appeared in the parody news publication The Onion.

In applying this factor to a particular use of copyrighted material, the first factor's commercial/noncommercial distinction comes into play. If the use is noncommercial, the plaintiff must illustrate that it is harmful, or that the preponderance of evidence points to a likelihood of future harm to potential markets. If the use is commercial, likelihood of future harm is presumed.

The 9th Circuit's dealt with the fourth factor in detail in the recent case De Fontbrune v. Wofsy, 39 F.4th 1214 (9th Cir. 2022). This case involved a copyright dispute over photographs of Pablo Picasso's artwork. De Fontbrune owned the copyright to a catalog of these photographs (the "Zervos Catalog"). Wofsy, an art editor, published books that included reproductions of photographs from the Zervos Catalog without permission. The court's analysis focused particularly on the fourth fair use factor. Although the price of the Zervos Catalog increased since Wofsy began publishing his books, the court still found that the fourth factor weighed against a finding of fair use. The court went beyond the price of the catalog itself and considered the potential market for licensing the individual photographs. They noted that de Fontbrune, the copyright holder, could have licensed those photographs to others for similar uses, such as inclusion in books or articles. The court determined that Wofsy's unauthorized use of the photographs harmed this potential licensing market. By reproducing the photographs without permission, Wofsy essentially usurped a market that de Fontbrune could have exploited.

Furthermore, because Wofsy's use was both commercial and non-transformative, the court applied a presumption of market harm. This means that Wofsy had the burden of proving his use did not harm the market for the copyrighted work, which he failed to do. The court explicitly stated that there was no evidence presented "about the effect on the market for licensing the disputed photographs". This lack of evidence further supported their finding of market harm.

They looked beyond the direct sales of the Zervos Catalog and considered the broader potential market for licensing the individual photographs. This nuanced approach highlights the importance of a thorough analysis of the fourth fair use factor, considering all potential markets for the copyrighted work.

In addition to all the factors discussed above, several other considerations can further weigh against fair use. Failure to seek permission when licensing opportunities are readily available suggests an intent to circumvent copyright protections. Using copyrighted material in a manner that contradicts industry standards, engaging in repetitive or systematic unauthorized use, disregarding copyright notices, and misrepresenting ownership or authorship are all factors that undermine fair use. Additionally, the failure to provide sufficient context, critique, or commentary reduces the transformative nature of the use and weakens the claim. Additionally, bad faith, such as failing to credit the original author, or falsely implying affiliation with the copyright holder, can undermine fair use.

The following hypothetical situations illustrate how the fair use doctrine might apply in different contexts:

A teacher wants to use a short clip from a copyrighted movie in a classroom presentation: This use is likely to be considered fair use, as it is for classroom use, involves a small portion of the movie, and is unlikely to harm the market for the film. Additionally, the TEACH Act provides guidelines for the use of copyrighted materials for non-profit educational purposes, that if followed precludes any copyright infringement.  

A blogger wants to use a copyrighted photograph in a blog post about current events: This use might be considered fair use if the photograph is used for news reporting purposes and the use does not harm the market for the photograph. However, courts will carefully scrutinize the purpose and character of the use, even in news reporting contexts, to ensure that the use is truly transformative and not merely a substitute for the original.  

A musician wants to sample a portion of a copyrighted song in a new song: This use might be considered fair use if the musician transforms the original sample in a creative way, uses only a small portion of the song, and the new song does not harm the market for the original song. Transformative uses, even in commercial contexts, can be fair use. However, the amount and substantiality of the portion used, as well as the potential market impact, will be crucial factors in determining whether the use is fair.

When seeking to use the work of another for educational or other purposes that may be considered fair use, it is important to carefully evaluate whether your use qualifies under the fair use doctrine. No use of a copyrighted work is automatically fair. Thus, there is always doubt about whether your intended use meets the fair use criteria. It is therefore prudent to obtain permission from the copyright owner. Being proactive and understanding the nuances of fair use can help you avoid legal risks while ensuring your use aligns with copyright law.

It is best to use public domain works, where there is no risk of copyright infringement. If you must use a copyrighted work, it is best to seek permission from the copyright holder to avoid potential infringement issues. Before downloading material or distributing content, check for a copyright notice, which may provide instructions for requesting permission or guidelines on permissible uses. Avoid using the entire work and alter the copyright work to adapt it to your purpose, if possible.

While the fair use doctrine provides a valuable framework for balancing copyright protection with freedom of expression, it is not without its limitations and controversies. One major criticism is that the doctrine's flexibility and lack of bright-line rules can create uncertainty and unpredictability for both copyright holders and users. This uncertainty can lead to costly litigation and discourage the creation and dissemination of new works.

Another challenge is the application of fair use in the digital age, where the ease of copying and sharing copyrighted material has increased exponentially. The Internet and digital technologies have blurred the lines between personal and commercial use, making it more difficult to assess the market impact of unauthorized uses.

Furthermore, the fair use doctrine has been criticized for favoring certain types of uses, such as parody and criticism, over others. This can lead to accusations of bias and inconsistency in its application.

Despite these challenges, the fair use doctrine remains a vital aspect of copyright law, allowing for flexibility and promoting innovation and creativity.

As a general matter, the fair use analysis is a tool to decide whether the benefits resulting from the use of the copyrighted work outweigh the losses to the copyright owner. The use of copyrighted material for the purposes of criticism, comment, news, reporting, teaching, and scholarship or research tends to fall into the fair use category. The statutory factors are useful guideposts in the fair use determination, but every situation is fact specific. Close analysis is required to make a meaning determination on the issue of fair use.

Copyright law is an intricate area of the law. If you have a copyright dispute, you are seeking registration with the copyright office, or you have some other copyright matter with which you need assistance, please contact our office for a free consultation.