Copyright Fair Use Attorney

Legal Uses of Copyrighted Material: A Guide to Fair Use in Copyright Law

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.

Fair Use Analysis

Section 107 of the 1976 Copyright Act sets forth six general usages of copyrighted material 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 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.

The Four Factors

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.

The First Factor: The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes

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.

Commercial versus Noncommercial

The law favors non-commercial use is favored over commercial uses. Thus, uses for non-profit purposes, journalism, scholarship, 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.

Transformative Use

Often the nature of use factor is decided based on whether the defendant’s use is “transformative”. Does the use of copyrighted material add something new? Does it 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 found to be infringing.

The Second Factor: The nature of the copyrighted work

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here is generally on whether the copyrighted material is (1) factual or creative, and (2) whether it is published or unpublished.

Factual or Creative

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. 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.

Published or Unpublished

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.

The Third Factor: Amount and substantiality of the Portion used in Relation to the Copyrighted Work as a Whole

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.

Fourth Factor: Effect of the Use upon the Potential Market for or Value of the Copyrighted Work

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.


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.

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