What is Fair Use?

Fair use is one of the most common defenses to copyright infringement. This doctrine, formalized in §107 of the Copyright Act of 1976, allows for others to use a copyrighted work for parody, critique, commenting, news reporting, satire, scholarship, and research, without regard for the copyright holder's wishes. To be considered fair use, the new work must be done in a 'transformative' purpose. One cannot simply re-display the entirety of the original work, it must be different in some way.

Fair use of copyrighted material is all around us. When a reviewer of a book, a movie, or music quotes a few lines of the work, this is fair use. When the Daily Show uses a clip of Fox News to ridicule it, this is fair use. When a Professor quotes a poem to his students, this is fair use. When the evening news summarizes a new medical report to better inform its viewers, this is fair use. All of these uses illustrate how versatile and broad the defense of fair use can be. With the advent of blogs and the ever increasing importance of the internet, fair use is becoming ever more important as commenting on copyrighted material has become far more accessible to the average person.

§107 of the Copyright Act lays out four factors to determine if a work is within the scope of fair use. the purpose and character of the use, including whether such use is of a 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.

One famous Supreme Court Case which dealt with this four factor test was Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). Orbison and Dees wrote a song called 'Pretty Woman', which they sold to Acuff-Rose. 2 Live Crew made a hip hop parody version. Acuff-Rose sued for copyright infringement. Campbell, the front man of 2 Live Crew, argued that he was protected by the fair use provision because his song was a satire of the original. US Supreme Court noted that parodies in general might be covered by fair use or they might not, depending on the specific circumstances. The Court found the song to be for commercial use in the first factor, the nature of the copyrighted work was found to be a work of fiction, 2 Live Crew did not take more than was necessary of the copyrighted work for the third factor, and that new song had no negative effect on the market value of the original. When these factors were weighed against each other, the Court ruled for 2 Live Crew.

Congress wrote the fair use exception as intentionally vague, so that it could be broad, and tailored to fit the facts of a given case. Many of the cases are heavily fact specific, and there are no bright line rules. While this can be frustrating for those wishing to avoid litigation, it can also be useful once litigation has begun since the courts will have more deference to make a just ruling. This underscores the importance of consulting with an attorney prior to utilizing the fair use exception to comment on or transform a copyrighted work. If you have a copyrighted work, it is important to consult an attorney as well, since not all parody or commentary will fall under the fair use exception. One should not assume that all commentary is fair use or free speech. It is important to remain vigilant with respect to your rights.