Introduction to Fair Use

There is virtually no question which occurs more frequently to those in the publishing community than "how much of someone else's work may I use without asking permission?" The answer rests in the concept of "fair use" and the fair use exception in the Copyright Act.

Fair use is a limitation on the exclusive rights of the copyright owner. The roots of what we today refer to as fair use are well established in our early English common law tradition. The "fair use doctrine" is a complex exception to the "limited monopoly" vested in authors by the United States Constitution and Copyright Act. The guiding principle of the fair use doctrine is to make available, for limited purposes, reasonable public access to copyrighted works.

Section 107 of the Copyright Act, entitled, "Limitations on Exclusive Rights: Fair Use," is the statutory codification of the fair use doctrine. This judicially developed concept strives to balance the public's need to know and be informed against authors' incentives to create. The copyright law contemplates that fair use of a copyrighted work without permission shall be for purposes such as (1) criticism and comment, (2) parody and satire, (3) scholarship and research, (4) news reporting and (5) teaching, and that such fair use will not result in the infringement of a copyrighted work. As one may expect, authors and publishers usually take a restrictive view of the fair use doctrine, while users of copyrighted materials generally take a more expansive view.

The codification of the fair use doctrine is not intended to be a rigid, fixed body of law of the fair use privilege. This is because of the endless variety of situations and combinations of circumstances that can arise in any particular case which precludes the formulation of exact rules. For this reason fair use judicial decisions are very difficult to predict and sometimes even more difficult to reconcile with previous decisions.

Determining Whether a Particular Use is a Fair Use

Section 107 enumerates four "fair use factors" that need to be analyzed in order to determine whether a particular use of a copyrighted work is fair use. These factors are:

Because the courts consider all four factors - no single factor is and of itself sufficient to prove fair use - publishers need to understand each factor as it relates to determining whether use of the original copyrighted work in the creation of a new work will be considered fair use in the eyes of the court.


Purpose and Character of Use

This first fair use factor - purpose and character of use of the original copyrighted work - evaluates the new work by taking into account the following criteria:

The first criterion - commercial or noncommercial nature of the new work - ascertains whether the new work was created primarily as a commercial venture or was instead created for a noncommercial or educational purpose. Although every commercial use is not presumptively an unfair use, and therefore conclusively determinative, this test indicates that a preference for fair use will be granted to works that are created for noncommercial or educational purposes rather than for commercial purposes.

The second criterion looks to see if the new work is for one of the purposes specifically contemplated by the fair use provision -- (1) criticism and comment, (2) parody and satire, (3) scholarship and research, (4) news reporting and (5) teaching. The burden of proving fair use is somewhat easier to demonstrate if the new work is for one of these purposes, however, other uses may also be determined to be a fair use of the copyrighted work.

The third criterion evaluates the degree of transformation accomplished by the new work, e.g., is the transformative purpose of the new work for comment, criticism, or parody of the copyrighted work. In other words, this criterion determines whether the new work merely supplants the original copyrighted work, or whether it adds something entirely new to the copyrighted work. Important factors include whether the new work has a different purpose or different character than that of the copyrighted work. The crucial factor is whether the new work alters the copyrighted work by adding new expression, meaning or message to the copyrighted work.

Nature of Copyrighted Work

This second fair use factor - nature of the copyrighted work - acknowledges that some works are simply more deserving of copyright protection than others. Consequently, this portion of the fair use analysis attempts to determine the scope of copyright protection that should be afforded the copyrighted work.

This factor recognizes that some works are closer to the core of intended copyright protection than others, and therefore provides that fair use is more difficult to establish when these works are copied. The scope of fair use is greater when an "informational" work - a work of facts or information, a work of scholarship or of news reporting -- as opposed to a more "creative" work -- a work of fiction -- is involved or when a work is designed to inform or educate rather than to entertain.

Another important consideration is whether the copyrighted work is published or unpublished. The right of an author to determine whether and when to publish their work has always been regarded as one of the most important author's rights. Therefore, courts have been far less willing to sanction as fair use the unauthorized taking of an unpublished work than of a published work.

Amount and Substantiality of the Portion Used of the Copyrighted Work

The third fair use factor looks at the amount and substantiality of the copying in relation to the copyrighted work as a whole. The critical determination is whether the quality and value of the materials copied are reasonable in relation to the purpose of copying. This is not a pure ratio or an absolute quantity of words test since using a whole work may be fair use under some circumstances, while using a small fraction of a work may not qualify for fair use under other circumstances. The sanctioning of the unauthorized copying of entire works as fair use is an exception and not the rule. Therefore, anyone who uses all or substantially all of a work, particularly a literary work, is asking for trouble, and will probably be found to have exceeded the bounds of fair use.

The quantity, as well as the quality and importance, of the copied material must be considered. One criterion that courts frequently evaluate is to make certain that the user of the copyrighted material has taken no more than was necessary to achieve the purpose for which the user copied the materials.


Effect Upon Potential Market or Value of the Copyrighted Work

The fourth fair use factor - effect upon the potential market or value of the copyrighted work - considers the extent of harm to the market or potential market for the copyrighted work caused by the new work. This test evaluates the potential as well as actual financial harm to the original copyrighted work, as well as to current and potential derivative works.

The United States Supreme Court has declared this fair use factor the most important element of fair use. Therefore, those who wish to use another's copyrighted materials without permission must decide whether or not their utilization of the copyrighted material is going to harm either the present or potential market for the copyrighted work.

For publishers this means you must be very careful of appropriating enough of another's copyrighted work for your own use, in the hope that your use will be protected by fair use, especially if the new work becomes a substitute for, or makes the purchase unnecessary of, the appropriated copyrighted work itself. This use would certainly not be sanctioned as fair use.

Courts have expressed this standard by finding that the unauthorized use is not fair use if the unauthorized use tends to lessen or negatively impact the potential sale of the original copyrighted work, interferes with the marketability of the work, or fulfills the demand for the original copyrighted work.

This factor does not make the presumption that all commercial gain is automatically unfair use, however, if there is commercial gain from the new work, unless the use is transformative and not superseding, there will be a high burden to prove that the underlying work was not financially damaged.

Part II of this article will discuss specific fair use judicial decisions and provide publishers with examples and guidelines to help them evaluate whether a particular use of a copyrighted work will be protected by the fair use doctrine.

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Lloyd L. Rich is an attorney practicing publishing and intellectual property law. He can be reached at 1163 Vine Street, Denver, CO 80206. Phone: (303) 388-0291; FAX: (303) 388-0477; E-Mail: rich@publishingattorney.com; Web Site: http://www.publishingattorney.com.