Legal Definitions - fair use

Fair use is a legal principle in United States copyright law that allows for the limited use of copyrighted material without permission from the copyright holder. It acts as an affirmative defense, meaning that if a copyright owner sues someone for infringement, the person accused can argue that their use of the material falls under fair use and is therefore not illegal.

The concept of fair use is designed to balance the rights of copyright holders with the public interest in promoting creativity, free speech, and the advancement of knowledge. Courts determine whether a particular use is "fair" by carefully evaluating four key factors, none of which is solely determinative:

• 1. The character and purpose of the use: This factor considers whether the use is for commercial or non-profit educational purposes. Non-profit and educational uses are generally viewed more favorably. Crucially, courts also look at whether the new work is "transformative." A transformative use adds new expression, meaning, or message to the original work, rather than merely superseding it. Examples include parody, satire, criticism, or commentary.
• 2. The nature of the copyrighted work: This factor examines the original material itself. Using factual works (like news articles or scientific papers) is generally more likely to be considered fair use than using highly creative or fictional works (like novels, songs, or poems). Additionally, using an unpublished work is generally viewed less favorably for fair use, as authors have a strong right to control the first public appearance of their creations.
• 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole: This factor considers both the quantity of the original work used and its qualitative importance. Taking a small portion of a large work is generally more favorable than taking a large portion. However, even a small amount can weigh against fair use if it constitutes the "heart" or most significant part of the original work.
• 4. The effect of the use upon the potential market for or value of the copyrighted work: This is often considered a very important factor. Courts assess whether the new use harms the market for the original work or for potential derivative works (like adaptations or translations). If the new use acts as a substitute for the original, thereby diminishing its sales or licensing opportunities, it is less likely to be considered fair use.

Courts weigh and balance all four of these factors together to make a decision, as no single factor is decisive on its own.

Examples of Fair Use:

• Educational Commentary: A high school history teacher creates a presentation for their class that includes several short video clips (each less than 30 seconds) from a copyrighted documentary film about World War II. The teacher pauses each clip to provide historical context, analyze the filmmaking techniques, and lead a class discussion on the events depicted.

  • How it illustrates fair use:
    • Character and purpose: The use is for non-profit educational purposes and is transformative because the teacher adds new commentary and analysis, not just showing the clips for entertainment.
    • Nature of the work: The documentary is primarily factual, which generally favors fair use.
    • Amount and substantiality: Only short, specific clips are used, not the entire film, and they are integrated into a larger educational context.
    • Market effect: This use is unlikely to harm the market for the original documentary, as students would not typically purchase the film for this specific educational segment.

• Artistic Parody: A satirical online magazine publishes an image that closely mimics the iconic cover art of a famous, copyrighted album, but replaces the original band members with caricatures of political figures and changes the album title to reflect a current political scandal. The image is accompanied by an article critiquing the political situation.

  • How it illustrates fair use:
    • Character and purpose: This is a clear example of parody, which is highly transformative. It uses the original work to comment on or critique something else (in this case, politics), rather than merely reproducing it. Even if the magazine is commercial, the strong transformative nature often weighs heavily in favor of fair use.
    • Nature of the work: While the original album cover is a creative work, its use here is for critical commentary.
    • Amount and substantiality: Enough of the original cover is used to make it recognizable as a parody, but the alterations create a new message.
    • Market effect: The parody is unlikely to compete with or diminish the market for the original album cover; instead, it creates a new market for satirical commentary.

• News Reporting and Criticism: A local newspaper publishes a review of a newly released book. In the review, the journalist quotes two short paragraphs directly from the book to illustrate a point about the author's writing style and character development. The review encourages readers to purchase the book.

  • How it illustrates fair use:
    • Character and purpose: The use is for news reporting, criticism, and commentary, which are generally favored purposes. It is transformative as it uses the excerpts to analyze and critique the work.
    • Nature of the work: While the book is a creative work, the use is for critical analysis.
    • Amount and substantiality: Only a very small portion (two paragraphs) of the entire book is quoted, and it's used to support the review, not to provide a substitute for reading the book.
    • Market effect: The review, by quoting small portions and encouraging purchase, is likely to promote sales of the book rather than harm its market.