One of the most common defenses to a charge that a copyright is being infringed is the defense of fair use.  US copyright law, via the doctrine of fair use, allows for the use of copyrighted work by someone other than the copyright owner without that owner’s permission.  In simple terms, it gives you permission to partially use someone else’s work, but not their entire work.  If an artist has copyrightable protection to the lyrics of a song, and you sing the exact same lyrics publicly to an audience of 1,000 people, you would likely be infringing that artists’s copyright such that may have recourse against you in court.  What the doctrine of fair use provides is that you are legally allowed to use some of the copyrighted work without permission.  How much and what you can use is often a very difficult question to answer.  

To determine whether a use of a copyrighted work qualifies as a non-infringing fair use, courts balance several factors.  It is important to note that not one of the factors is determinative in deciding whether a use is fair or not, but rather all factors must be considered.  These factors are set out in 17 USC 107, and they are: (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. 

When looking at the factors to determine whether a use is fair or not, there are some general principles.  For the first factor, the purpose and character of the use, some purposes of a non-copyright owner’s use have been determined to be in favor of a finding of fair use, and others not.  For example, purposes such as education/research, criticism/commentary, news reporting, and those that are non-profit in nature have been found to be in favor of a finding of a fair use, while commercial and for-profit purposes tend to weigh against a finding of fair use.

Regarding the second fair use factor, the nature of the copyrighted work, a critical question to ask is, “has the copyrighted work been published?”  If the copyrighted work has not been published, and you are using at least some part of it, that is a fact that will likely work against you when it comes to your fair use defense, whereas uses of a published work weigh in the other direction.  Another aspect of this factor deals with facts (e.g., the speed of sound, the chemical composition of a drug, what the text says in a judicial opinion), which cannot be copyrighted.  If you are using facts found in a copyrighted work, that will support fair use, while uses of the copyright owner’s originality in his or her work will generally tend to work against a finding of fair use.  

Regarding the third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, the general rule, which makes sense, is that if you take a lot (e.g., you are copying verbatim 300 words of a 700 word article), that will work against you, whereas if the amount you are taking is small (e.g., you are copying verbatim 10 words of a 400 word article), that will generally work in your favor.  Now, the key with this factor is whether you are taking the “heart” of the copyright owner’s material.  For example, if I were to make up a song about a woman wondering what women a man has been spending his time with, with 90% my own lyrics, but for the main chorus sang over and over the lyrics “Whose bed have your boots been under?” in the tone Shania Twain sang it in for her hit song, the fact that I took the main chorus, even though it by volume was a small portion of the song, would work against me in my fair use defense.

For the fourth factor, the effect of the use upon the potential market for or value of the copyrighted work, this factor looks at the economic harm had on the copyright owner.  If what you are doing with the copyrighted work does not economically harm the copyright owner, that fact will support you in your application of the defense of fair use.    

In addition to balancing these four factors, courts will also look at whether a particular use is “transformative” or not in determining whether that use is fair.  In one US Supreme Court Case, Campbell v. Acuff-Rose Music, 510 U.S. 569, Justice Souter wrote, it is important to consider “whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is ‘transformative,’ altering the original with new expression, meaning, or message.” Souter also stated, “Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.  Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”

In summary, if you are using some of another’s copyrighted work, balancing the four factors outlined above, and also assessing whether your use is transformative, is a great step to take in determining whether your use of that work is a defensible fair one or not

This article was authored by John P. Powers, and is intended to keep readers current on matters affecting intellectual property and is not intended to be legal advice. If you have any questions about its content, please leave a comment below.

©John P. Powers, 2021, all rights reserved.