Written by attorney Philip Leon Marcus

Is it really fair use?

I wish I could tell you exactly what is a “fair use" by another author of a copyright expression. I can’t and neither can anyone else. It is a vague defense to infringement allowed by 19th century judges, and eventually put into concrete words by Congress. The words are so concise they are not so precise.

But I am tough so I will give it a try. As you read this please keep in mind that the judges always—when fair use is claimed—try to compare two stakes and their importance. One stake is of the original author, who is entitled to control copying and distribution of copies of his or her work. (That could be text, music, visual art, animation, live action video or any other medium.) That stake includes the right to expand the original and make “derivative works," such as a movie sequel. The second stake is the second author, who has a stake in making some use of the original, because use is how expression develops. The law accepts that development.

When it codified the fair use defense in 1976 Congress said:

“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

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

(2) the nature of the copyrighted work;

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

(4) the effect of the use upon the potential market for or value of the copyrighted work." [US Code, title 17, section 107.]

Look at the first factor, the character of the use.

  • A teacher in a non-profit school is more likely to benefit from fair use than a for-profit publisher or movie producers, for examples.
  • Someone parodying the original has a leg up (although not someone parodying a third party using the original, such as a political candidate parodying his opponent by reworking the words to a popular song).
  • Does the new work, courts ask, transform the original into a new expression—such as a critique or an explanation? Verbatim copying gets little protection.

Now the second factor, the nature of the original.

  • An unpublished work gets more protection—less fair use—than a published work, because the author has the right to control the “when" of distribution of copies.
  • Factual works more likely can be used than fictional ones. Facts themselves can be freely used, but not so much their expression by the original author.

The third factor focuses on what portion of the original is used.

  • If you copy only a little you are more likely using fairly.
  • But not if the small bit is the heart of the work.
  • Unless you are doing a real parody, so you cannot bring it off without taking the heart.

The final factor is economic, effect on the market for the original.

  • If you sell copies the original author could have, it is not fair.
  • That is so even if you move the original to a new medium, such as photos into sculpture—a real 1992 case—even though the photographer had no intention to make sculpture himself.
  • If you parody—if you ridicule the original—even if you destroy the future value of the original in the market, and regardless whether your parody is in good taste, you have made a fair use. So Roy Orbison’s “Oh, Pretty Woman" was fairly parodied by 2 Live Crew’s later “Pretty Woman" that used the original melody and a much revised lyric to portray the banality and naïveté of the original. (I still like the Orbison song, by the way; I am a 1950s guy.)

There are two more important points not in what Congress wrote. First, a judge and jury are likely to consider, perhaps unconsciously, whether you are a good guy or a bad guy. Second, giving credit to the original author buys you nothing.

The short of all this, sadly for creative people, is that fair use is messy business. Even lawyers and judges disagree about exactly what it means. If you have any doubt at all, you had better—before you publish—consult with a copyright lawyer, who is familiar with all the cases decided both before and after Congress spoke. He or she may well need to look for cases close to the one you present and how they came out, and lawyers learn in law school how to do this effectively.

© 2012 Philip L. Marcus.

Free Q&A with lawyers in your area

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer