Fair Use

The fair use doctrine is embodied in the US Copyright Act section 107 titled, “Limitations on exclusive rights: Fair use.” As the title of the section implies, fair use carves out a broad and flexible definition of activities and uses that are exempt from the restrictions on use of copyrighted materials imposed by section 106. Among the exemptions listed in section 107 are criticism, parody, commentary, news reporting, educational, and research uses. However, the examples provided in section 107 are not exclusive nor are any of these uses fair per se. To determine whether any use is fair, the following four factors must be considered:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. Uses that fall closer to the nonprofit educational side of the spectrum are generally more likely to be deemed fair use, while uses that fall closer to the commercial side are not. Note, however, that commercial use alone is not sufficient to deny a fair use determination.
  2. The nature of the copyrighted work. This factor considers the degree to which the work used is creative and whether or not it has been published. Generally the more creative a work, the less likely a court is to grant a fair use exception. Similarly, an unpublished work is typically given more protection than a previously published work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. In regards to quantity, the less the amount of a copyrighted work is used, the more likely the use is determined to be fair. In regards to substantiality, the less central or significant the portion used is to the “heart of the work,” the more likely the use will be seen as fair.
  4. The effect of the use upon the potential market for or value of the copyrighted work. If a use is in direct competition with a copyrighted work or has the potential to negatively impact the market value of a copyrighted work or derivatives thereof, then the use is less likely to be deemed fair. This factor refers to the negative impact associated with the copying of a work, and not with negative criticism or commentary about a work (as criticism or commentary is considered fair use).

No single factor is outcome determinative. Rather, all four factors should be explored and the results weighed together.