What is Fair Use?
Fair use, under copyright law, is a principle that balances the rights of copyright owners with other creators who wish to use their work for a “transformative” purpose without the permission of said copyright owner.
Usually, using copyrighted works without the permission of the owner would lead to a claim of copyright infringement, but the fair use standard is what is used to refute the claim. The fair use standard is usually observed when used for commentary, criticism, or parodies of the original work.
The term “transformative” purpose is a vague and contentious one; the implications changing constantly from court decision to court decision, as there are only general rules that creators and litigators must draw their own conclusions from.
The fair use standard was meant to be interpreted much like the free speech, open to interpretation, although there are four factors that must be taken into account when dealing with the fair use standard.
The Four Factors of Fair Use
The four factors of fair use, as detailed in the United States’ Copyright Law, under Title 17 of the United States Code §107 are:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.”
Factor 1, “the purpose and character of the use” is the primary indicator of fair use, as decided by the Supreme Court in a 1994 case.
When looking at cases where the content could possibly be in violation of copyright, courts will see whether or not the use is “transformative”: was the original material transformed by adding new meaning or expression? Did you create new value to the original by creating new understandings or insights? These are the big questions creators must ask themselves when they want to use copyrighted material for their own devices.
Factor 1 recognizes that there are several purposes that are appropriate for fair use, most of which are in the realm of nonprofit educational purposes: criticism, comment, news reporting, teaching, scholarship, and research.
Of course, these still have to comply with the other three factors before being considered “fair use”.
Factor 2 is about the nature of the copyrighted work, as more leeway is given to the copyright owner in this case, especially for artistic and/or unpublished work. Copyright owners have the right to determine how their work will first be publicized, which makes applying the fair use standard to unpublished works difficult (although not impossible).
The fair use standard is more easily and more broadly applicable to works on nonfiction, as courts are usually more protective of creative works.
Factor 3, the amount and substantiality taken, sets limits for how much copyrighted material you are able to use while still being within the limits of fair use.
While there is no exact quantity limit, it is relative to the length of the entire original piece, and how much is considered necessary in order to get the objective across.
The court has also measured the “amount of work” in qualitative terms before, finding that using small amounts of the original work to be excessive because they took the “heart of the work”. Since the “heart of the work” is the most integral part of the copyright owner, it carries a greater weight than other parts of the original.
However, this is not necessarily true in parody cases, where the parody is able to use a large portion of the original work, even the “heart of the work”, as it is the main point in which the parody is critiquing through the vehicle of humor.
Factor 4, how the potential market/value of the work is effected through the use of the fair trade standard, is probably the most complicated of the four factors.
If a creator wishes to use copyrighted materials, why not just pay for it? By applying the fair use standard, the creator is technically depriving the copyright owner of income, or undermining the copyrighted works’ new or potential market. If either of these occurs, a lawsuit will most likely occur, especially if the new creator generates significant income from producing new work.
A good example of this would be the Barack Obama “HOPE” poster created by Shepard Fairey before the 2008 presidential campaign, based on a photo shot by former Associated Press (AP) photographer, Mannie Garcia. Fairey’s unauthorized use of the image (and subsequent fame and income generated from the image).
When trying to determine the effect the duplication of copyrighted material has, one also has to look at the purpose of the material that contains the copyrighted material.
If the purpose of the new material is to generate profit, it makes it much more likely that it will be in violation of copyright law, although if your purpose is for research or scholarship, then it is more difficult to prove that it could have a market effect.
While the fair use standard benefits many, especially in the academic field, there are still provisions.
Aside from the four factors that the fair use standard must meet, it also cannot impede on the provisions established in sections 106 and 106A of copyright law established by the United States Code, which discusses the “exclusive rights in copyrighted works” and the “rights of certain authors to attribution and integrity”, respectively. Copyright owners have full freedom to pursue legal retribution against those who violate those provisions.
Thus, if you wish to use copyrighted material in a “transformative” way, keep the four factors of fair use, as well as the copyright owner’s rights in mind, or contact a law representative at Mollaei law if you have any further questions.
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