Not all uses of copyrighted material are considered infringements. The Copyright Act provides that the “fair use” of a copyrighted work is not an infringement of copyright. For example, uses of copyrighted material for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research are all activities that are favored and do not necessarily require permission. Unfortunately, there are no bright line rules for knowing in advance whether any particular use is a “fair use.” In considering whether a particular use of a work is considered fair use, the Court must examine four factors, and none of them trumps the others:
- The purpose and character of the use. (Why are you using this material?)
- The nature of the work used. (What kind of material? Commercial or educational?)
- The amount and substantiality of the portion of the work used as it relates to the work as a whole. (How much are you using? How important is the portion used in relation to the whole work? Is it the “heart” of the work?)
- The existence of negative market effect on the copyrighted work. (Is the author going to lose money or is the value of the copyright going to be harmed by the use?)
Factor 1: Purpose and Character
Why are you using this material? The statute itself distinguishes between uses that have a commercial purpose, and those that accompany non-for-profit educational activities. Uses by libraries and non-for-profit educational institutions are highly favored, but this preference is not unlimited. By the same token, purely commercial uses are less favored, but the fact that someone has a commercial purpose in mind does not automatically render the use unlawful infringement. Uses for purposes such as criticism, commentary and news reporting are all favored uses as they further the First Amendment principles of free speech. Uses for purposes such as teaching, scholarship or research are all favored as they advance the scope of human knowledge.
Recently, Courts have favored certain uses which are “transformative,” that is to say, the use adds something to the work and is not simply a verbatim copy. Caution should be exercised here, as this is a fairly recent development which adds an extra layer of uncertainty to an area of copyright law which was already burdened with a lack of bright line rules. One can change a work in such a way that the use is “transformative.” One can also change the work in a way that makes the result an illegal “derivative work.” Where one starts and the other ends is not clear.
Factor 2: Nature of the Work
What kind of material are you using? This factor walks hand in hand with factor one. If the material being used is meant for teaching and education, then a use is more likely to be fair use. If the material being used is strictly commercial and profit oriented, then a Court is more likely to protect that work and find infringement. For this reason, non-fiction works are less protected than works of fiction. This is an extension of the rule that copyright does not extend to facts, history or scientific principles.
Regardless of the above, works that are unpublished prior to the claim of fair use receive a higher level of protection regardless if they are fiction or non-fiction. The inquiry of the Courts is whether the author has made a conscious choice not to publish the work. Examples include a manuscript that the author regards as unfinished and needs improvement, or personal letters that the author never intended to be made public at all.
Factor 3: Amount or Substantiality
How much of the work is being used? And of the amount being used, how important is that portion to the work as a whole? This is truly the wild card of the four factors. Courts have approved as fair use, a use which took 100% of the work. Courts have rejected as fair use the copying as little as 300 words verbatim from a book hundreds of pages long.
As a general rule, the more you copy from the work, the likelihood that the use will be found to be fair use decreases. Also, if you are using the “heart” of the work, the portion that generates the most interest from a potential audience, the less likely the use will be fair use. It would be difficult to engage in a commentary on a work of art without reproducing the entire work. By the same token, quoting from a soon to be published work, even though the amount may be small, could be qualitatively important if revealing the information might suppress sales.
Factor 4: Effect on Market
Has the copyright owner lost money as the result of the use? Has the use caused a reduction in the potential market for the work? Has the use reduced the value of the copyrighted work as a whole? If the use replaces the need to acquire the work, such as copying the majority of a textbook, then the use is likely not to be a fair use, even though educational uses are highly favored. This can include copying portions of a book where electronic excerpts are available. Where a book is unavailable because it is out of print, copying a larger portion than normal would be fair use because effectively there is no market to harm.
Parody is a form of commentary or criticism, protected not only by fair use, but by the First Amendment as well. Though the author of the material, which is the subject of the parody, might be embarrassed or offended, it would be a stretch to suggest that a parody has harmed the future value of the copyrighted work. However, the material being used must also be the subject of the parody. Otherwise, it is not a criticism or commentary on the original work, merely a vehicle for satire aimed at something or someone else.
The sharing of copyrighted computer software, music or motion pictures by way of peer to peer file sharing is not fair use. The defense of fair use has been raised in all of these situations and has been resoundingly rejected by the Courts. This is due to the substantial negative market effect file sharing has on the copyrighted works.
If you photocopied one chapter out of a book to distribute in class, is there a negative market effect? In the absence of a copy machine, would you have really required your students to buy the textbook just to read one chapter? The likely answer is no. So, absent of a realistic effect on the market, the copying stands as fair use.
While all four factors must be considered when engaging in fair use analysis, the fourth factor provides the easiest way to make a quick assessment of the situation. Am I replacing the need to purchase a copy? Is the copyright owner going to lose money? Am I harming the future market for the work? If the answer to any of these is “yes,” then the use is likely not a fair use.