You can find quite a few good guides to fair use online. However, I have not yet found one that I think is both user-friendly and spot-on in its approach! (The latter is testament to the extremely subjective nature of fair use.) Thus, I decided to write my own.
The following is only a brief, high-level overview of fair use. Fair use is a very complex area. I can teach about fair use for a full day, and still workshop participants will have questions! This guide is meant simply as an introduction upon which you can build as you continue to explore the ever-evolving and exciting (yes, I’m a copyright geek) world of fair use.
Purpose and Role of Fair Use
U.S. copyright law is based on the idea of maintaining balance. On one side of the scale, the law grants copyright owners the right to prevent others from using their works in certain ways, with the intent that this will serve to incentivize people to create new works. On the other side of the scale, the law places limitations on an those rights so that others may use the works (within those limitations) to build upon them – again to create new works. The entire purpose of copyright law is to encourage creation of new works. The way the law goes about achieving this purpose is to maintain the balance between a copyright owner’s rights and the rights of others to use copyrighted works. Doing so is not simple and is an ongoing struggle.
The statutory law places some specific limitations on an owner’s rights, but these are very limited in both number and scope. Fair use is the flexible tool that is used to determine whether any given use will help to maintain the balance of copyright or tilt the scale too far in favor of one side or the other.
Important Points About Fair Use
The ultimate question asked by a fair use analysis is: Would allowing this use go further towards promoting the purpose of copyright law than would disallowing the use? If the answer is “yes,” the use will be considered “fair,” and the user may proceed.
The Copyright Act (17 U.S.C. §106) states that a court must consider four factors in making a determination of whether a use is fair. However, it may consider others if it thinks doing so is appropriate. Ultimately, the conclusion is a big picture analysis, based not only on analysis of the factors, but on the overall situation in the context of the purpose of copyright law. It is more, in other words, than simply adding up how many factors favor and how many disfavor a fair use.
The fair use analysis is very fact specific. It is impossible to say, for example, that every “educational” use is fair or that no “commercial” uses are fair.
Think of the analysis as being on a spectrum, both for each factor and overall. A factor may strongly favor or disfavor a fair use, or only slightly favor or disfavor, or maybe even be neutral in the overall analysis. Likewise, the use overall may clearly be a fair use, or may be closer to fair than not, but entirely clear. Often, then, some risk analysis is involved before deciding whether to proceed with a use.
Also keep in mind that the analysis looks at the specific use being made, not, for example, who the user is. It is all about how the work is being used.
Purpose and Character of the Use
This factor asks two questions: (1) Is the use you wish to make closer to being a non-profit educational use, or a commercial use? (2) Is your use “transformative” in purpose or character?
This factor will favor fair use when the use is closer towards being non-profit educational in nature and will disfavor fair use when commercial in nature.
A transformative use also favors fair use. Remember that this factor is looking at how you want to use the work. Thus, a “transformative” use is one that uses the work in a new way. A transformative use does more than “merely supersede.” Rather, it adds “something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). Examples of transformative uses are creating a parody (see Campbell) and using images in an image search engine – using them as part of an index rather than for their original intrinsic purpose (see Perfect 10, Inc. v. Google, 487 F.3d 701, 9th Cir. (2007)).
Nature of the Work
This factor favors uses of works that are more factual in nature and disfavors use of works that are more creative in nature. If the work is unpublished, this factor will likely disfavor fair use.
Amount and Substantiality of the Portion Used
The third factor considers more than simply how much of a work you want to use. It considers both how much, and what, you need to use to achieve your purpose.
Using more than necessary to achieve the purpose will put this factor against a fair use. In some cases, it may be necessary to use the entirety of a work, such as copying and displaying the entirety of images for use in a search engine for images (see Perfect 10, Inc. v. Google, 487 F.3d 701, 9th Cir. (2007)).
Likewise, this factor will go against fair use when using an important part of the work if use of that particular portion is not necessary. For example, this factor disfavored fair use when a magazine scooped publication of a book by copying a tiny portion of the book, which happened to be the juiciest part, in a “book review,” because it was not necessary to copy that particular portion to achieve the purpose served by a book review (see Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)).
Effect of the Use on the Potential Market for the Work
If your use is likely to harm the market for the work, whether you actually made money or not, and regardless of whether the owner actually lost money or not, this factor will disfavor fair use. The primary market to be considered is the actual market for the type of use you are making. For example, if you using a popular song, the market will be for the song itself if it is available individually, as opposed to the market for a full CD containing 15 songs. If you are showing a movie, the market to be considered will be for public performance rights licensing, not for sales of DVDs. If however, there is no market for the way you are using the work, this factor will either favor or not disfavor fair use.
A Final Word
Fair use is a flexible tool, by plan. If you ever become frustrated by the lack of bright-line rules, think of the flexibility and subjectivity as the beauty of fair use! It is a tool that can be used to analyze any situation that arises, and with the rapid pace of changing technology, new situations will continue to arise.
Like anything, the more you practice, the more masterful you will become making fair use calls, and the more comfortable you will become with it. We offer various options for exploring fair use in more depth, from open webinars to custom face-to-face workshops to learning materials for purchase (the latter coming soon!). Sign up to receive our updates so you don’t miss these opportunities (and to receive newsletters with legal updates), or contact us directly to discuss how we can help serve our institution or organization. You might also be interested in our Copyright Officer on Call program; see that website for more.
Finally, a word of caution about the various “guidelines” to fair use. A variety of guidelines, and sometimes checklists, are put out by diverse organizations. They can be helpful as just that — guidelines. But remember: There are no hard-and-fast rules in fair use, and guidelines are generally meant to state a minimum of what should constitute fair use, not a maximum.