Eleanor Finch
Fair use is a doctrine in copyright law that allows limited use of copyrighted material without requiring permission from the copyright owner. It is important to note that fair use does not constitute an infringement of copyright. The purpose of fair use is to enable scholars and students to make reasonable use of copyrighted materials for criticism, commentary, news reporting, teaching, research, and other transformative purposes. The determination of fair use is made on a case-by-case basis, considering four key factors: the nature and purpose of the use, the amount and substantiality of the portion used, the potential market impact, and the transformative nature of the use. These factors help assess whether the use of copyrighted material qualifies as fair, with commercial use generally weighing against fair use and non-commercial, transformative use being more favourable.
| Characteristics | Values |
|---|---|
| Purpose and character of the use | Criticism, commentary, news reporting, teaching, scholarship, or research |
| Commercial or non-commercial | Non-commercial uses are more likely to be considered fair use |
| Transformative | Using the work to create something new or add value to the original |
| Nature of the underlying work | Factual works are more likely to support a claim of fair use |
| Publication status | Published works are more likely to support a claim of fair use |
| Amount and substantiality of the portion used | Borrowing small bits of material is more likely to be considered fair use |
| Effect on the market | Uses that do not harm the copyright owner's current or potential market are more likely to be considered fair use |
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Non-commercial use
The transformative nature of the use is also a key consideration. If the use is transformative, it is more likely to be considered fair use, whereas if it is not transformative, it is less likely to be considered fair use. For instance, using advertisement images from the 1960s to discuss the use of race in advertising is a transformative use, as the advertisements were originally created to sell products. Similarly, purposes such as scholarship, research, or education may also qualify as transformative uses if the work is the subject of review or commentary.
The nature of the underlying work is another factor to consider. Using a creative work, such as a novel, painting, or song, weighs against fair use, as these works are at the core of copyright protection. In contrast, using a factual work is more likely to be considered fair use, as facts themselves are not copyrightable. However, it is important to note that using the "heart" of the work, even if it is a small portion, can weigh against fair use, as it may harm the potential market for or value of the copyrighted work.
Overall, while non-commercial use is an important factor in determining fair use, it is not the sole determining factor. Courts will balance the purpose and character of the use against other factors, such as the nature of the underlying work, the amount and substantiality of the portion used, and the effect on the potential market or value of the copyrighted work. Each case is evaluated on a case-by-case basis, considering all relevant factors and subfactors together.
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Transformative use
A transformative use adds something new to the original work, giving it a further purpose or different character, and does not substitute for the original use of the work. For example, repurposing a work to aid identification of the base work is generally considered transformative. In Kelly v. Arriba Soft Corp. and Perfect 10 v. Google, the creation and use of thumbnails to allow users of a search engine to easily browse through images were deemed transformative.
In Cariou v. Prince, the Second Circuit Court of Appeals held that, to qualify as a transformative use, the new work did not have to comment on the original work or on popular culture. The Court of Appeals concluded that 25 of Richard Prince's artworks, which included collages of copyrighted photographs, qualified as fair use.
In Authors Guild v. Hathitrust, libraries that provided Google with books to scan were protected by fair use when they later used the resulting digital scans for preservation, a full-text search engine, and electronic access for disabled patrons. The three purposes for which the scans were used were considered transformative, and the court also found no evidence of financial harm to the copyright owner.
However, in Warner Bros. Entertainment, Inc. v. RDR Books, the creation of a Harry Potter encyclopedia was deemed "slightly transformative" but not enough to justify a fair use defence, as it extensively copied text verbatim from the Harry Potter books.
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Published work
The use of copyrighted material varies depending on the purpose and intent of the user. The concept of "fair use" allows limited and reasonable use of copyrighted material without infringing on the owner's rights. This is determined on a case-by-case basis, and there are no bright-line rules. However, there are four key factors that are considered when determining whether the use of published work constitutes fair use:
- Commercial vs. Non-Commercial Use: The first factor is a crucial consideration. If the use of published work is for commercial purposes, it weighs against fair use. In contrast, non-commercial use is more likely to be considered fair. For instance, using published work in a non-profit educational context, such as in a classroom or for scholarly reports, leans towards fair use.
- Nature of the Underlying Work: This factor examines the underlying nature of the published work being used. Is it primarily creative or more factual? The use of creative works, such as novels, paintings, or songs, weighs against fair use, as these are at the core of copyright protection. On the other hand, the use of more factual or published works is more likely to support a claim of fair use.
- Amount and Substantiality: The third factor considers the amount and significance of the published work used in relation to the whole. Using small portions or quotes from a published work is generally more favourable for fair use. However, even a small portion may weigh against fair use if it constitutes the "heart" or core essence of the work.
- Effect on Potential Market: The fourth factor examines the potential impact on the current and future markets of the copyright owner. If the use of the published work negatively affects the owner's market or the potential market they could exploit, it weighs against fair use.
It is important to note that these factors are not standalone criteria, and each factor has subfactors that influence the overall determination of fair use. Additionally, while these factors provide a framework, the ultimate decision on fair use may require a federal court ruling, as judges determine the validity of a fair use defence.
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Limited portions
Using limited portions of a copyrighted work for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research can fall under fair use. This principle is based on the idea that using small or limited excerpts has less impact on the market for the original work and promotes the development of new ideas and knowledge.
Determining what constitutes a "limited portion" can depend on various factors, including the type of work involved and the purpose of the use. For instance, using a few sentences or paragraphs from a lengthy text is more likely to be considered fair use than copying the same amount from a much shorter text. Similarly, reproducing a single image from a collection of images is generally more acceptable than reproducing multiple images.
In some cases, specific guidelines or percentages are provided to help determine what constitutes fair use. For example, some educational institutions or professional associations may offer guidance on the appropriate amount of material that can be reproduced for educational purposes without requiring permission. However, these guidelines are not legally binding and should be used as a general reference, as fair use is determined by a broader set of principles rather than strict quantitative limits.
It is also important to consider the qualitative nature of the portion used in relation to the original work. Using a key or critical segment of a work, even if relatively small, could still constitute copyright infringement if it substantially diminishes the incentive to purchase or license the original work. Conversely, using a limited portion that is not representative of the whole work or that does not capture its key elements is more likely to be considered fair use.
Additionally, the purpose and context of the use play a significant role in determining fair use. Using limited portions for transformative purposes, such as creating a parody or incorporating content into a collage or montage, is generally more favorable for fair use than direct reproduction for the same purpose as the original work. The impact on the market for the original work is also a crucial consideration, where using limited portions in a way that does not significantly affect the potential market or revenue for the original work is more likely to be considered fair use.
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Non-infringement
Copyright law provides a set of exclusive rights to the creators of original works of authorship, but it also recognizes limitations on those rights. One important limitation is the doctrine of "fair use," which allows limited use of copyrighted material without requiring permission from the copyright owner. The principle of fair use provides a legal defense in copyright infringement cases if the use of copyrighted material falls within certain specified criteria. One key criterion is that the use does not constitute a copyright infringement. This means that if a use qualifies as fair, it is not considered a violation of the copyright owner's exclusive rights.
To ensure non-infringement when using copyrighted material, it is important to consider the specific facts of each situation and apply the fair use factors accordingly. The more transformative the use, the less likely it is to be considered a copyright infringement. Additionally, using a small and unsubstantial portion of the work may also favor a finding of fair use. It is also important to assess whether the use could potentially result in market harm to the copyright owner. If the use serves a different purpose, targets a different audience, or does not substitute for the original work in the marketplace, it is less likely to be considered infringing.
Seeking permission from the copyright owner or licensing the work is always the safest option to avoid infringement claims. However, understanding and properly applying the fair use doctrine can provide flexibility and balance in using copyrighted material for expressive, educational, or transformative purposes. Each fair use analysis is highly dependent on context, and it is always advisable to consider the specific circumstances and consult relevant legal guidance when determining whether a particular use is likely to be considered fair and non-infringing.
In summary, non-infringement is a crucial aspect of the fair use doctrine, which allows limited use of copyrighted material without the need for permission. By considering the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the impact on the potential market, one can assess whether a particular use is likely to be considered fair and non-infringing. A key principle is to ensure that the use is transformative, adding something new or further serving the public good, without simply substituting for the original work in the marketplace. Understanding non-infringement in the context of fair use empowers individuals to utilize copyrighted works in innovative, educational, and socially beneficial ways while respecting the rights of copyright owners.
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