One of the most powerful, flexible, and common exceptions to copyright protection is the doctrine of fair use. Fair use allows you to use copyrighted material without the permission of the copyright holder in many situations. The Copyright Act calls out a number of specific purposes for which the fair use of copyrighted material is generally favored. These include:
- news reporting,
- teaching (including multiple copies for classroom use),
- scholarship, and
At its heart, fair use is a balancing test of four factors, commonly shortened to purpose, nature, amount, and effect.
The first factor of a fair use analysis examines “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” If the copyrighted work is being used for one of the purposes listed above, then fair use tends to be favored. Likewise, the analysis looks at whether the original work has been “transformed;” that is, has value been added to the original work by the addition of additional expression or commentary? Or, has the original work been modified in such a way to include additional uses, information, or aesthetics?
The second factor examines “the nature of the copyrighted work.” In this analysis, the use of published items is favored over unpublished items, and the use of factual or nonfiction works is favored over creative works. This factor of the analysis also examines whether the copyrighted work is intended to be consumable, such as worksheets for in-class work or a game such as a crossword puzzle.
The third factor considers “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” Here, the greater portion being used of the work, the less fair use is favored. Moreover, even if a small portion of the copyrighted work is being used, if that portion is central to the work, its use alone may disfavor fair use. A key portion in this analysis is to determine whether the amount of the copyrighted work being used is the least amount needed to fulfill the purpose identified in the first factor.
Finally, “the effect of the use upon the potential market for or value of the copyrighted work” must be examined. The primary examination is whether the use of the copyrighted work would serve to replace the purchase or licensing of the original. Among the issues to be considered are the spontaneity of use, the amount of exposure the copyrighted work will have, how many copies of the copyrighted item exist, whether the copyright item is still in print, and whether the user lawfully owns a copy of the work.
LACK OF CERTAINTY
Although fair use is a powerful exception to the copyright protection, it can be frustrating because there are no bright-line tests for determining fair use. Thus, the power of fair use is tempered by its uncertainty. Reasonable minds and copyright experts can, and often do, disagree about whether a particular use is fair. Only the final decision of a court can provide a definitive answer about fair use in a specific situation.
Congress, however, recognized that the risk generated by this uncertainty might unnecessarily chill otherwise fair uses of copyrighted material and provided a substantial benefit to non-profit academic institutions. Where the user of a copyrighted work has made a good-faith attempt to analyze the fair use factors, statutory damages for copyright infringement will be remitted to zero if infringement is ultimately found. Thus, it is important to consider the fair use factors, and document that analysis should a controversy arise about the use of copyrighted work.