the fair use of a copyrighted work. . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- Is the use for commercial purposes? If so, it is less likely to be considered fair use.
- Does it fall within the purpose of the Fair Use exception? ( (1) criticism and comment, (2) parody and satire, (3) scholarship and research, (4) news reporting and (5) teaching). If so, it is more likely to be fair use.
- Is the use transformative or merely derivative? If the use is transformative, it is more likely to be viewed as fair use.
- the nature of the copyrighted work
- Informational work (factual articles) are more likely to be ruled fair use than works of fiction/literature/music. Exception: Parodies of works of fiction are likely to be viewed as fair use. As stated in Suntrust v. Houghton Mifflin, 'This factor is given little weight in parody cases, however, "since parodies almost invariably copy publicly known, expressive works.'"
- Was the work being copied previously published? If it was unpublished then Courts are more likely to find a fair use violation. They assume that the author did not want the work published.
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole: In general, the smaller the portion of the work copied, the more likely the use is fair use. In certain instances, you can copy entire works without violating copyright—videotaping movies for time-shifting purposes is allowed when doing it for your personal viewing. On the other hand, the use of 400 words from President Ford’s 200,000 word memoir was viewed as copyright infringing because those words represented the “heart of the book”
- The effect of the use upon the potential market for or value of the copyrighted work. (Probably the most important factor). If the copied work reduces demand for the original work because people view it as a substitute for the original work, then this factor will weigh as copyright infringing. But a stinging criticism that makes the author of the original work look like a fool, and thus reduces the demand for the original work in the marketplace, will fall within Fair Use.
How are these factors to be weighed in a Fair Use analysis? The Supreme Court provided guidance in Campbell v. Acuff Rose:
The fair use doctrine thus "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Stewart v. Abend, 495 U.S. 207, 236 (1990) (internal quotation marks and citation omitted).
The task is not to be simplified with bright line rules, for the statute, like the doctrine it recognizes, calls for case by case analysis. Harper & Row, 471 U. S., at 560; Sony, 464 U. S., at 448, and n. 31; House Report, pp. 65-66; Senate Report, p. 62. The text employs the terms "including" and "such as" in the preamble paragraph to indicate the "illustrative and not limitative" function of the examples given, § 101; see Harper & Row, supra, at 561, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses. [n.9] Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright. See Leval 1110-1111; Patry & Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Ent. L. J. 667, 685-687 (1993) (hereinafter Patry & Perlmutter). [n.10] (emphasis added.)
Here is what the Supreme Court said in Harper & Row v. Nation.
News reporting is one of the examples enumerated in § 107 to "give some idea of the sort of activities the courts might regard as fair use under the circumstances." Senate Report at 61. This listing was not intended to be exhaustive, see ibid.; § 101 (definition of "including" and "such as"), or to single out any particular use as presumptively a "fair" use.
Cutting through the legalese, this means that if a work in question involves news reporting or parody, then it could very well be an example of fair use. But we must not presume that it automatically falls under fair use. The Court must look at the situation as a whole and balance all four factors in deciding whether the use is fair. AND IN SOME CASES THE COURT MAY WEIGH FACTORS NOT EXPLICITLY LISTED IN SECTION 107 OF THE COPYRIGHT LAW.
The Fair Use Doctrine will not necessarily prevent you from being sued if you use the work of another person--no matter how fair your usage is. However, it can provide an effective defense if you have followed the fair use guidelines. Courts should do an analysis weighing all four factors to determine whether a given usage is fair. Each case is different, and the weight that a Court will give to each of the four factors may vary on a case-by-case basis.
For further information regarding Fair Use, visit:
Electronic Frontier Foundation
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