Suzanna M. M. Morales

In today’s digital world, it is easier than ever to copy a third party’s work that is covered by copyright. The term “fair use” is often used to justify the use of such copyrighted materials without the owner’s consent, but what does “fair use” really mean?

Fair use is an affirmative defense to copyright infringement. That means that even if an alleged infringer is found to have copied the copyright owner’s work, using the work fairly, the alleged infringer will not be liable for infringement. It is the alleged infringer’s burden to prove fair use. However, it is difficult to determine whether there is fair use in any particular instance, and prior court rulings provide little guidance because each case is considered on its own unique facts.

This article discusses the current meaning of fair use as that doctrine evolves under U.S. copyright law, and why it is not so easy to pin down.

Under the U.S. copyright statute (17 U.S.C. § 107), a court will consider four factors to determine whether a use of copyrighted material constitutes “fair use”:

  • (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose

Here, one important consideration is whether the use is “transformative,” i.e., that the new use “communicates something new and different from the original or expands its utility.” (This language is from the influential Second Circuit Court of Appeals in Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015)). In order to be “transformative,” the use must “do something more than repackage or republish the original copyrighted work.” For instance, a user cannot simply re-post the copyrighted work of another in its entirety, no matter what the purpose, if it is to be transformative.

In addition, this factor specifically directs the court to consider whether the purpose is commercial. However, just because a for-profit entity uses the material, that does not end the inquiry. The court will take a closer look at the actual purpose of the copying, no matter what the status of the copier.

  • (2) the nature of the copyrighted work

This factor is often considered in comparison with the purpose of the use of the work. One famous example is the Supreme Court’s holding that 2 Live Crew’s off-color interpretation of the song “Pretty Woman,” appropriating the signature opening riff of the famous Roy Orbison song, was a parody of the original, and was used fairly.

There is some indication that the courts will consider the copying of heavily fact-based works to be more likely to constitute fair use because the underlying factual information itself is not copyrightable, but other courts have discounted this, considering the creativity involved in incorporating and presenting those facts in a finished work.

In any event, this factor is generally not significant to the overall consideration of fair use.

  • (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole

Here, the court will consider the amount of the copyrighted work made available to the public, rather than the amount used by the alleged copier. Rather than being a simple equation of the percentage of copying, the court will consider whether the material copied is at the heart of the copyrighted work. For example, the Supreme Court held that excerpts of a few hundred words from the book – a highly-anticipated memoir of former President Gerald Ford – was a substantial portion of the work. Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539 (1985).

  • (4) the effect of the use upon the potential market for or value of the copyrighted work

The U.S. Supreme Court has held that this is the most important factor. Harper & Row, 471 U.S.  at 566. This factor considers whether the claimed infringer’s use is a competing substitute for the original which would deprive the copyright owner of significant revenues. This factor considers not only the potential effect on the market for the copyrighted work of the claimed infringer, but also the effect of widespread use of the work in a similar manner. Here, the court will consider whether an unlimited number of others using the copyrighted work in the same way would impact the copyright owner’s market for its work.

However, a type of use that is completely unlikely to become a part of the normal market for the original work is more likely to be considered to be fair use than a market that the copyright owner would be likely to exploit.

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It is not possible to generalize instances that may be considered fair use, because courts consider the facts of each case on a case-by-case basis, considering not only these, but also any other relevant factors. Fair use is not a black-and-white, binary consideration, but will depend on the specific factors of each case. A main theme of the fair use consideration is whether the copying would usurp the market and supplant the original. And as new technologies and ways to copy continue to develop, the law will continue to evolve.