Last updated May 15, 2014.
- What is fair use anyway?
- What does it mean to say a use is “transformative”?
- What does it mean to say a use is “non-transformative”?
- Is fair use really as unpredictable as some people say?
- What if there is no on-point best practice guide for me?
- Where can I learn more?
What is fair use anyway?
In U.S. copyright law, fair use is a use of a copyrighted work that does not infringe the exclusive rights that the law confers on authors and other rights holders.
Section 107 of the U.S. copyright act identifies four factors that courts should consider in determining whether a use is fair or infringing:
- The purpose and character of the challenged use;
- The nature of the copyrighted work;
- The amount and substantiality of the challenged use; and
- The harm the challenged use is likely to cause to the market or potential market for the work.
No factor is dispositive; all must be weighed together.
Uses for criticism, commentary, news reporting, research, scholarship, and teaching are identified in the statute as examples of favored uses. Noncommercial uses are generally more likely than commercial uses to be fair. Transformative uses are also more likely than non-transformative uses to be fair.
The scope of fair use tends to be somewhat broader for fact-intensive works, especially when done for one of the favored purposes.
A good shorthand way of considering whether a use you want to make of another’s work will be fair is whether the amount you borrowed from the other’s work is reasonable in light of your purpose and unlikely to supplant demand for purchase of the original.
What does it mean to say a use is “transformative”?
A use will be considered “transformative” if it:
- Actually transforms expression in the work, as a parody of a song might do;
- Is included in a new work of authorship, as quoting from the writings of a person in a biography;
- Is used for a different purpose than the original, causing it to have a different meaning, as when a newspaper publishes a photograph that has become controversial.
Transformative uses will not always be fair. A new arrangement of a song, for instance, may well infringe the derivative work right. But especially when done for purposes of criticism or commentary, the transformativeness of a use will tend to tip in favor of fair use.
Courts have recently been receptive to the idea that copyright owners do not have the right to control all transformative uses of their works. Transformative uses are less likely than non-transformative uses to pose a risk of supplanting market demand for a work.
What does it mean to say a use is “non-transformative”?
A use will be considered “non-transformative” if it is, for example, an exact copy of a work or part of a work. Making a time-shift copy of a television program is an example of a non-transformative use that courts have deemed fair. Posting a chapter of a book on an electronic course reserve system is another example of a non-transformative use. (The Cambridge University Press v. Becker case, which is presently pending before an appellate court, is testing whether this kind of use is fair.) Scanning a photograph you like and posting it online is a third example of a non-transformative use.
Non-transformative uses may be and often are fair uses, but they are somewhat less likely to be fair uses insofar as they pose a stronger risk of harming the market for the work. If someone makes a copy of a movie or computer program, for instance, instead of buying a copy of his own, that non-transformative use is more likely to have a negative effect on the copyright owner’s market. Even though one person’s peer-to-peer file-sharing of music or a movie would seem to be relatively trivial, courts take into account that if they say this use is fair, then many others will do the same thing and the aggregation of these uses are likely to cause market harm.
Is fair use really as unpredictable as some people say?
It is sometimes said that fair use is unpredictable. Larry Lessig, for instance, spoke of fair use as “the right to hire a lawyer.” For some people, this perception of unpredictability has a chilling effect (that is, they are unwilling to take the risk that the use will be held unfair).
To provide guidance, the Center for Media and Social Impact at American University has published some “best practices” guidelines to help people become more comfortable with making fair uses, including one for documentary filmmakers and one for user-generated video content (remixes and mashups). The Center for Media and Social Impact has published a template to help users in particular communities to form their own best practices guidelines.
The “best practices” approach is catching on.
What if there is no on-point best practice guide for me?
Even if no best practice guidelines exist for your community, it is worth knowing that there is more predictability in the fair use caselaw than some have suggested. As noted above, a use is likely to be fair if done for a purpose such as criticism, comment, news reporting, scholarship, teaching and research as long as what you take from another’s work is reasonable in light of your purpose. Here are some examples:
- Quoting small amounts of text (8% or less) from each of 25 writings in a critical biography of L. Ron Hubbard was held a fair use in New Era Publications Int’l ApS v. Carol Publishing Group in 1990.
- Reproducing seven posters in significantly reduced sizes that had once advertised Grateful Dead concerts in a 480 page book on the cultural history of the band was held to a fair use in Bill Graham Archives v. Dorling Kindersley in 2006.
- Preparing a reference work about the characters, plot, and special features of fictional works was held to be fair use in Warner Bros. Entertainment v. RDR Books (although RDR had to change some places where there was very close paraphrasing of passages from Harry Potter novels) in 2008.
- Scanning student papers into a database designed to detect plagiarism was held fair use in A.V. v. iParadigms in 2009.
- Retelling the story of Gone With the Wind from the vantage point of a slave was held a fair use in Suntrust Bank v. Houghton Mifflin Co. (However, an unauthorized sequel to Catcher in the Rye, imagining Holden Caulfield as an old man, was held unfair in Salinger v. Colting. Sequels, in general, are likely to be considered infringing derivative works. One reason the use was fair in Suntrust was because of it was a critical commentary on the original and the Mitchell estate made clear it would never have licensed this kind of use of the famous novel.)
Where can I learn more?
For further reading on fair use, we recommend:
- Pamela Samuelson, Unbundling Fair Uses, 77 Fordham L. Rev. 2537 (2008)
- Center for Media and Social Impact at American University, Fair Use Best Practices
- Stanford Copyright & Fair Use