How to Analyze Whether Copyright Infringement is a "Fair Use"

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Fair use is not a right or a privilege

The concept of "fair use" is a very misunderstood concept. The first common misunderstanding that people espouse is that the concept of "fair use" is a right or privilege granted by copyright law. Fair use is not a right or a privilege to be exercised at one's whim. Rather, the doctrine is an "equitable rule of reason" that may be used as an affirmative defense in a copyright infringement action. The purpose of the rule is to balance the equities between the desire to protect and therefore encourage the creation of new ideas and the desire to encourage the free exchange of speech in the marketplace of ideas. The tension was described by Justice Souter as "simultaneously protect[ing] copyrighted material and allow[ing] others to build upon it." Nonetheless, the thing to remember is that application of the fair use defense is declared by judicial fiat in the context of a copyright infringement action. It is applied on a case-by-case analysis of the factual situation.


Four factors used by the courts to determine if an infringer is entitled to the fair use defense

There are four factors weighed by the Supreme Court in making a determination of whether a derivative work constitutes a "fair use." These factors are (1) the nature of the work itself; (2) whether or not the work is commercial in nature; (3) the amount of the copyright work that is used; and (4) the effect of the use on the potential market or value of the copyright at issue. Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841), codified at ?107 of the 1976 Copyright Act.


The "nature of the work" factor - must transform

The nature of the work refers to the "nature" of the unauthorized derivative work, not the original copyright work. In order for such an unauthorized use of copyrighted material to be entitled to the"fair use" defense, the new creation must transform the original copyrighted material. A "transformative work" is defined by the U.S. Supreme Court as one that "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." See, Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994).


The commercial nature of the work

With regard to the second factor as to whether a use is commercial in nature, it should be noted that this does not necessarily mean that the new creation has to generate profits. If the new work create a significant fan, donor and/or advertiser base, those factors tend to lead to a conclusion that it is commercial in nature. A person simply does not have the "right" to use copyrighted works in any manner as long as no profit is generated from the use.


The amount of the work used

The third factor is fairly easy to evaluate: the more material "borrowed" from the copyrighted source, the less likely the infringer is to have a "fair use" defense. Again, another misconception is that there is a bright line test for fair use: that a few measures of a song, a couple of lines from a poem, a few hundred words of a paragraph, or a few paragraphs from a book, are considered fair use. This misconception has no basis in either the Copyright Act or the case law interpreting it. It is merely folklore. The factor, as used by the courts, is more of a sliding scale based, again, on the quantity of the material used from the copyrighted work as compared to the total material.


The impact on potential market

Finally, the last factor weighs the impact on the infringing use on the potential market and value of the copyright. This was an integral part of the Supreme Court's ruling in Acuff Rose that 2 Live Crew's parody of Roy Orbison's Oh Pretty Woman did not impact the potential market for the original. The more a derivative work negatively impacts the potential market for and value of the copyright, the less likely it will be a "fair use."



In summary, as you may have noticed, the fair use doctrine is by no means a bright line test. Each "fair use" defense is, by its very nature, evaluated on a case by case analysis in the context of a copyright infringement action. Fair use is not something to be relied on as a presumptive right. This article first appeared on my blog, Law on the Row, on March 13, 2008. Click the link below to see the full article with links.

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