What the Heck is Fair Use Really?
We will probably revisit the question of fair use a lot throughout this blog, because it’s a huge part of the framework of copyright in the US, particularly when you’re trying to decide whether it’s ok to do something using (or based on) something that already exists and is subject to copyright. But let’s start with the basic question: what the heck is fair use?
Essentially, fair use is a framework that allows some use of a copyrighted work without obtaining permission from the rights holder. Among other things, it’s supposed to be a First Amendment check on copyright. In general, the kind of uses that fair use is likely to protect fall into two major categories: uses that the rights holder would likely say yes to or rights that they would almost certainly say no to.
Fair use is an affirmative defense. If you’re asserting fair use, you’re essentially asserting that your use likely would be a violation of copyright without a finding of fair use. THis does make it more risky, because if the court decides it’s not fair use then you’re liable for a violation of copyright. That doesn’t mean it’s never a battle worth fighting, but it’s definitely something to keep in mind!
But that is only part of the story, so let’s take a slightly deeper, but still surface level, look.
What does the Copyright Act actually say…and what does that mean?
I’m going to cover this by breaking down the actual language of Section 107, which describes fair use, in pieces. I’m only going to touch on each of these at a surface level right now, because we’ll go into them more deeply in other posts, where I look at actual cases and how courts have applied the statute.
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
What are Sections 106 and 106a?
106 and 106a talk about the rights of a copyright holder, 106 is the general provisions, while 106a is a very specific set of rules from a law called the Visual Arts Rights Act (VARA). VARA covers special rights that apply only to creators of visual arts. What, specifically, is in those provisions isn’t important for now, just know that they cover the rights that a copyright holder has, and that this section, which describes fair use, is a limitation on those rights.
Common Fair Use Examples
After establishing what fair use provides exceptions to, the statute then describes some of the most common examples of fair use: criticism, comment, news reporting, teaching, scholarship, or research. It’s worth noting, though, that these examples are only examples. Remember, the statue says “such as,” and that means it’s not precisely an exhaustive list. That said, any time you can find a way to make your use fit one of these categories? There’s a good chance your argument just got stronger.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
I think this is reasonably obvious, but to be 100% clear, this means that the next portion of the statute lays out factors the court must consider in determining whether a particular use qualifies as fair use. One thing that may be less obvious to a non-lawyer…this is a multi-factor test. That means that a lot of these decisions aren’t going to be cut and dry. You can’t just say “Oh, my use is X, therefore it absolutely falls under fair use.” There are going to be uses that that’s a pretty easy call, but there are going to be a lot that aren’t so simple, too.
It’s also worth noting that, at least in theory, no one of these factors is more important than the others. How these factors are weighted, and what is determinative, is going to depend on the particular case.
So, let’s look at the factors one at a time:
Character of the Use
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
Essentially, the court looks at how the claimed “fair use” actually uses the copyrighted work. This includes, but is not limited to, whether the person or entity claiming fair use is profiting off the use. In general, a not for profit use is likely to have a stronger case, but for profit uses aren’t definitely a violation, and not for profit uses are not definitely safe.
This factor also incorporates what is often a very important question: is the work “transformative.” Transformative uses add something new to the underlying work, they are uses of a different character from the original, and they don’t substitute for the original. We’ll get much deeper into what courts have found to be “transformative” in other posts, because it’s an incredibly important consideration. For now, it’s probably best to simply understand that being able to argue that your work is transformative is a very important piece of a fair use case. Inability to do that isn’t necessarily a guaranteed loss. After all, educational use may or may not be truly “transformative” and sometimes it can still be fair use. But if you can’t credibly claim your use is transformative, you’ve made your case much harder.
Nature of the Copyrighted Work
(2) the nature of the copyrighted work;
It’s easier to win a fair use case if you’re copying something factual, like a biography, then if your copying is of something fictional. The theory here is that dissemination of factual information benefits the public, so there’s a stronger reason to allow this use. It’s also easier to win a case if your copying is from a published work as opposed to an unpublished work (though in the later case, the rights holder might have to prove that their work existed first!).
Amount Taken from the Copyrighted Work
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
This one is pretty straightforward: the less you take, the safer you are. That said, if the portion you take is the core, or heart, of the work, you’re probably going to run into trouble even if it’s only a tiny piece of the whole. Generally, this means that if you take the most memorable part of a work, even if it’s only a small piece, you’re taking a significant risk.
It’s worth noting that this rule doesn’t really apply cleanly in the case of parodies. Parodies are often pretty strong fair use cases…and parodies often take A LOT, not to mention the most memorable pieces. If they don’t they aren’t really recognizable as parodies! You need that heart to conjure up the original work and, in doing so, create a parody. I’ll get into parodies more in later posts, though.
Effect on the Market
(4) the effect of the use upon the potential market for or value of the copyrighted work.
If your work deprives the copyright owner of potential income, that weighs against a finding of fair use. What matters isn’t necessarily whether the copyright owner IS pursuing that particular avenue to make money, but that they could, and this is true even if your work isn’t competing directly with the original work
Unpublished Works
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
I’m not sure I need to explain this much, it’s pretty clear. You can make fair use of an unpublished work, as long as your work meets the criteria above.
So what?
Fair use is a potential defense to a claim of infringement, but it’s not always cut and dry. We’ll get further into the specifics in later posts. But for now, let’s just say whether or not a use is fair depends on a lot of individual criteria.
