What is Fair Use?

In our practice, we get a lot of questions surrounding what is and what isn’t fair use under copyright law. So, exactly what is fair use? It’s a legal doctrine designed to encourage freedom of expression of ideas, and it permits the unlicensed use of copyright-protected works in certain circumstances. Unfortunately, although the doctrine is codified into law in Section 107 of the U.S. Copyright Act, what constitutes fair use is ultimately and often vigorously debatable.

Certain activities seem to fall squarely within fair use, such as teaching, research, scholarship, and news reporting. Other activities can qualify, however, but to determine whether your use of copyrighted material in your own work falls under fair use is determined by four factors that the use is evaluated against. Frequently, we can pontificate on whether use qualifies as fair use, but the final test will always be a courtroom. It’s all theoretical until someone claims copyright infringement and you have to defend your use using the doctrine of fair use. The doctrine requires the examination of the four factors in concert with each other to determine fair use, and this is done by a court. The four factors are:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes. Again, it is sometimes very easy to tell whether use is commercial or educational, but being educational doesn’t automatically mean that a use falls under fair use. Being commercial also doesn’t automatically mean that the use wasn’t fair. This factor has to be examined along with the other three factors in reaching a final determination as to whether the use should be deemed fair under the doctrine. Additionally, if the work is “transformative,” then it is more likely to be deemed a fair use even if it is commercial in nature. Work that is transformative creates something new, with a further purpose or different character, and most importantly is not a substitute for the original use of the work. An example might be if an artist takes a headline from a newspaper and incorporates it into a painting. The headline is copyrighted, but the text added to the painting doesn’t keep people from reading the article, doesn’t divert or substitute the need or purpose of the article, and ultimate has no commercial impact on the newspaper article. The headline has been transformed in purpose and character.
2. Nature of the copyrighted work. This factor moves very much in a theoretical direction. When the doctrine cites the nature of the copyrighted work, the reference relates to the type and purpose of the work that’s being used. If the work that’s been copyrighted was already designed as a creative expression, use of that work is less likely to be deemed fair. For instance, if you read a novel and then write another novel based on the same characters (yes, we know this is fan fiction) and sell that new novel with no licensing or permission from the original author, you may be expressing yourself creatively, but you are taking material as the basis for your expression that was already a form of creative expression itself. In this instance, people may find your new novel and read it instead of the original novel by the original author. You are substituting your creative expression for the copyright holder’s creative expression. Alternatively, if instead, you take a historical audio recording of an event, and you write a fantasy novel based on that historical accounting, this is more likely to be deemed a fair use, because the original intent of the copyright material was not creative expression but factual documentation. Additionally, reading that fantasy novel isn’t a direct substitute for listening to the historical account. Again, this is just one factor in determining fair use.
3. Amount and sustainability of the portion used in relation to the copyrighted work as a whole. This, like all of the other factors, has no magic formula to determine how much of the work is fair. However, a court will look to the amount of the copyright material used as well as the quality of that portion. This means, even if you take just a single sentence from a whole novel, it could be deemed an unfair use if that single sentence sums up the heart of the novel and creates a substitute for the previous work or otherwise diverts the value of the existing copyright. There may be other times where your entire piece is word for word from the prior work but is still deemed fair for being transformative enough or for having little to no impact on the existing work’s audience. Again, all of these factors have to be analyzed in harmony with each other.
4. Effect of the use upon the potential market for or value of the copyrighted work. This factor is probably the most concrete in that it at least has a pecuniary basis (theoretically). The court will look at the new work and try to determine to what extent this new work’s unlicensed use will harm or disrupt the existing or future market for the copyright owner’s original work. This isn’t just a dollar calculation, however. There is analysis as to whether any sales were or could be displaced by the unlicensed work but also more amorous concepts like potential “substantial harm” if the new work becomes widespread. In some cases, it can be really easy to determine whether the unlicensed work will harm the original, and in some cases, even if the work is clearly a copyright violation, there may not be substantial impact in either harm or market. To go back to fan fiction, it might be that your free online fan fiction novel that creates a romantic relationship between Leia Organa and Chewbacca is in fact an unlicensed use of George Lucas’s (and now Disney’s) copyright, but if Disney chooses to sue you over it, they would have to try to claim that your use isn’t fair because it will create substantial harm to their potential market. As obvious a violation as it is, it likely won’t be worth their time to sue you to have the fan fiction removed because there’s no real economic impact or repetitional damage being done by your fiction. Additionally, there’s no financial gain to you, and fans of the Star Wars universe are unlikely to read your fan fiction to the exclusion of Disney’s properties, so it probably be considered a waste of everyone’s time and money to pursue. Please don’t consider this an open invitation to launch that Star Wars fan fiction extravaganza you’ve been dreaming about for thirty years. This was purely an example. Remember, this article is not legal advice, and ultimately, in the case of Star Wars, Disney gets to determine what’s worth suing over, and the court gets to determine whether the use was fair.

The Bad News

Just like the official information on copyright.gov, we are not able to provide specific legal advice to individual members about questions of fair use other than to inform you of what factors the court considers in its determination. It is impossible and unethical to counsel anyone that any specific use is per se fair use, because courts evaluate these claims individually, and the outcome is completely dependent on the facts specific to that case. There is no set formula a lawyer can give you that will ensure that your use falls within fair use.