Ever wonder how your favorite YouTube star can create a parody of a hit song without obtaining the permission of the artist of the original work? Or how a teacher can distribute photocopies of a book to her students without the author suing for copyright infringement? The answer lies in the fair use doctrine. The fair use doctrine limits the rights of copyright holders by allowing individuals to use a copyrighted work for certain uses without obtaining the permission of the copyright holder. A good understanding of the fair use doctrine can help determine when you need to obtain an author’s permission to use her work.
U.S. Copyright law permits an individual to use a copyrighted work for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research without obtaining a license from the owner of the original work. While this may seem straight forward, the line between what constitutes a statutory fair use and what is considered copyright infringement can often be quite blurry. Copyright fair use requires a careful balancing of four factors to determine whether the work is infringing, with no single factor determining whether the use is a fair use. These four factors include:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C. Section 107.
The first factor to consider when determining whether the use of a copyrighted work is fair is the purpose and character of your use. This factor includes a consideration of whether the use is for commercial or nonprofit educational purposes. Whether the use is for educational or commercial purposes does not automatically render the use infringing or non-infringing. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994). Rather, this is just one part of the first step of the fair use balancing test.
The purpose and character factor more predominantly focuses on how transformative the use is, meaning how much the new work changes or adds to the original work. The use becomes more transformative as you add something original or change the old work. The other factors become less significant when the second work is more transformative. See id. at 579. Conversely, merely copying the original work without making any substantive changes to it will likely result in a finding of copyright infringement and a license will be needed.
The second step of determining whether your use is a fair use hinges on what type of work the original work is. The more creative and original the first work is, the more protection it receives under copyright law. Therefore, the use of material from a work that is more factually based is more likely to weigh in favor of a finding of fair use whereas the use of material from a creative fictional work, such as a song or a novel, might lean more toward infringement. Determining the nature of work is usually relatively straight forward and is just one of the factors to be considered in the analysis.
This step focuses on the amount of the original work that the new work uses. Your new work can only use what is reasonably needed from the original work. Whether the amount taken is justifiable depends on what kind of work the new work is. For instance, a song parody will likely need to use a larger amount of the original song so that listeners of the parody will know what song is being referenced, whereas an artist creating a photographic collage might not need to use a large portion of the original photograph. See id. at 588. Additionally, unnecessarily using the most important part of the original work might not be fair. See Harper & Row Pubs., Inc. v. Nation Enters., 471 U.S. 539, 565 (1985).
The last factor concentrates on the current and potential market for the original work. If audiences prefer your new work over the original, then it is okay if your new work harms the current market for the original work. However, your work cannot simply be a replacement for the original work. If your use is highly creative and transformative, then it is less likely that it will usurp the market for the original. Harm to the potential market will be found if your use could cause fewer creators to seek a derivative license for the original.
No one of the four factors dominates the fair use analysis. Rather, a careful balancing of all four factors is needed and the balancing is highly circumstantial. The more creative and transformative the new use, the more likely it is that the use is fair. However, given the tricky nature of the fair use analysis, consulting a lawyer or seeking a license can help you avoid costly litigation.