Copyright and Fair Use

When can a copyrighted work be used without an owner’s permission?

Some uses of a copyrighted work are considered fair use — that is, the use may infringe, but the infringement is excused because the work is being used for a transformative purpose such as research, scholarship, criticism, or journalism. When determining whether an infringement should be excused on the basis of fair use, a court will use several factors including the purpose and character of the use, amount and substantiality of the portion borrowed, and effect of the use on the market for the copyrighted material.

It’s important to understand that fair use is a defense rather than an affirmative right. This means that a particular use only gets established as a fair use if the copyright owner decides to file a lawsuit and the court upholds the fair use defense. There is, therefore, no way to find out in advance whether something will or won’t be considered a fair use. Of course, if the copyright owner is willing to grant permission for the use, then the uncertainty surrounding the use goes away. For this reason, most people who propose to use a copyrighted work do what they can to obtain permission, and only rely on the fair use defense if permission is not granted or the copyright owner can’t be located.

A person who infringes a copyright but has good reason to genuinely believe that the use is a fair use is known as an innocent infringer. Innocent infringers usually don’t have to pay any damages to the copyright owner but do have to cease the infringing activity or pay the owner for the reasonable commercial value of that use.

The Copyright Act of 1976, as amended in 1992, authorizes any person to make “fair use” of a published or unpublished copyrighted work—including the making of unauthorized copies — in these contexts:

  • in connection with criticism of or comment on the work
  • in the course of news reporting
  • for teaching purposes, or
  • as part of scholarship or research activity.

As a practical matter, fair use is primarily an affirmative defense to a claim of copyright infringement — that is, the defense is that even if infringement occurred, there is no liability, because the infringing activity was excusable as a fair use of the original work.

Learn more about Copyright and Trademarks.

The Four Fair Use Factors

Whether or not a particular instance of copying without permission qualifies as a fair use is decided on a case-by-case basis and depends on four basic factors. These are:

  • the purpose and character of the use, including whether such use is of a commercial nature or 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.

Below we examine each of these factors separately. Note that when we use the term “defendant” we are referring to the person accused of infringement.

Purpose and Character of Use

The first factor is considered the most important and requires an analysis as to whether the use is transformative. That is, did the defendant change the original by adding new expression or meaning? Did the defendant add value to the original by creating new information, new aesthetics, new insights and understandings? If the use was transformative, this weighs in favor of a fair use finding. In a parody, for example, the parodist transforms the original by holding it up to ridicule. The brief use of photographs in a film was considered to be transformative because the images were used in furtherance of the creation of a distinct aesthetic and overall mood. The defendant’s work doesn’t have to transform the original work’s expression as long as the purpose is transformative; for example, scholarship, research, education, or commentary.

Learn more about the Essentials of Copyright Law.

Nature of the Copyrighted Work

When considering the second factor — nature of the copyrighted work — a court will generally consider whether the work being copied is informational or entertaining in nature. As the Supreme Court indicated, “copying a news broadcast may have a stronger claim to fair use than copying a motion picture.” Why? Because copying from informational works such as scholarly, scientific, or news journals encourages the free spread of ideas and encourages the creation of new scientific or educational works, all of which benefits the public. In addition, a defendant has a stronger case of fair use if material is copied from a published work rather than an unpublished work. The scope of fair use is narrower with respect to unpublished works because of the author’s right to control the first public appearance of his expression.

Amount and Substantiality of Portion Used

As for the third factor — amount and substantiality of portion used — the more that is taken from a work, the more difficult it becomes to justify it as a fair use. For example, in one case the court found that copying more than half of an unpublished manuscript was not considered a fair use. When considering the amount and substantiality of the portion taken, the court considers not just the quantity of the material taken but the quality of the material taken. Determinations regarding “quality” or “substantiality” are subjective and may be difficult to reconcile. For example, the copying of 1 minute and 15 seconds of a 72 minute Charlie Chaplin film, used in a news report about the comedian’s death, was considered substantial and not a fair use. However, in another case, the court determined that copying 41 seconds from a boxing match film was not substantial and permitted it as a fair use in a movie biography of Muhammed Ali.

In certain rare cases, copying of a complete work may be considered a fair use. (Universal City Studios v. Sony Corp.) For example, the Supreme Court in the Sony case permitted the off the air copying of complete television programs by consumers who owned video recorders (VCRs).

Learn more about Copyrights and Trademarks for Computer Software and Online Content.

Effect on the Potential Market

As for the fourth factor — effect of the use on the potential market — a judge must consider the effect on the actual and potential market for the copyrighted work. This consideration goes beyond the past intentions of the author or the means by which the author is currently exploiting the work. For example, in one case a photograph was adapted into a wood sculpture without the authorization of the photographer. The fact that the photographer never considered converting the photograph into a sculpture was irrelevant. What mattered was that the potential market existed as demonstrated by the fact that the defendant earned hundreds of thousands of dollars selling such sculptures.

Some uses are not considered to undermine the potential market. Copying a magazine cover for purposes of a comparative advertisement is a fair use, because the comparative advertisement does not undermine the sales or need for the magazine. Similarly, a court found that the appearance of a poster in the background of a television series for less than 30 seconds did not harm the potential market for the poster.

Similarly, a court held that a search engine’s practice of creating small reproductions (“thumbnails”) of images and placing them on its own website (known as “inlining”) did not undermine the potential market for the sale or licensing of those images. One of the reasons for this fair use ruling was that the thumbnails were much smaller and of much poorer quality than the original photos and served to index the images and help the public access them. (Kelly v. Arriba Soft Corp. and see also Perfect 10, Inc. v. Amazon.com)

In addition to these four fair use factors, a court may consider other factors, if relevant. The drafters of the Copyright Act of 1976 were careful to advise that the four fair use factors were intended only as a guideline and the courts are free to adapt the doctrine to particular situations on a case by case basis.

A thorough and current source of fair use information is the Copyright & Fair Use site.

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