What is Fair Use Of A COpyright Protected Work?
Fair use is a privilege granted under the law to make a limited use of a prior author's work without seeking that author's prior consent. This article focuses on what constitutes fair use, excepting parody and satire which is discussed in a separate article. To qualify as fair use, the use must itself first fall into one of the following categories:
- Criticism or Comment;
- News Reporting;
- Teaching; or
- Scholarship or Research
So assuming the author seeking to borrow from copyrighted work is a scholar, educator, researcher, or news agency what precisely constitutes fair use? Unfortunately there is no strict rule as to when fair use is fair. Under the law, one must carefully balance and consider the following factors:
- the purpose and character of the use, including whether such use is of a commercial nature or for non-profit purposes;
- the nature of the copyrighted work to be used;
- the amount of the copyrighted work to be used; and
- the effect such use will have on the commercial value and market for the copyrighted work being used.
1. The Purpose and Character of the Use
Lets take a look at the first factor-- the "purpose and character of the use." When examining this factor, the courts typically will try to determine if the use was: (1) was socially productive; (2) commercial or non-commercial; and (3) in good faith. Generally where the use is for a socially productive non-commercial main purpose such as for research and scholarship, criticism or comment, or just basic news reporting (although small amounts of money may be earned from all three), the court will likely find the use to be fair use since the dissemination of information and advancement of human understanding is considered an important public policy. However, if the purpose and character of the use was socially productive, but nonetheless primarily made for commercial gain, the court is likely to find that the alleged scholar could have afforded to ask permission and pay a reasonable royalty rate. In other words, if the primary purpose is commercial gain, the court will be more likely, but not necessarily inclined, to limit the fair use privilege. The court will now more rigorously apply the other three factors to the above-mentioned 4 pronged test.
2. The Nature of the Copyrighted Work
Copyright seeks to protect the author's original expression of an idea fixed in a tangible medium of expression. First it should be noted that educational, scholarly, technical, and professional works based on facts are often provided less copyright protection than works based on pure fancy such as plays, romance novels, horror films, etc... When looking at this factor, the court will generally look at some of the following: (1) is the underlying copyrighted work fact or fiction; (2) does the underlying work involve pictures and graphics or just text; (2) is the underlying work in or out of print; and (3) whether the underlying work has been published. Generally the court will grant the author seeking to incorporate parts of a pre-existing copyrighted work more leeway if the work is more factual in nature, than creative. Likewise the court is more likely to grant more leeway if the work is out-of-print. However, less leeway is given where the nature of the work sought to be incorporated without permission is of artistic nature such as a graphic, picture or drawing or has yet to be published. A work is deemed to have been published if multiple copies have been distributed to the public with the author's permission.
3. The Amount of the Copyrighted Work to be Used
To date no court has set a limit on the number of words, musical notes, or images that may be used without permission. When analyzing this factor the court will consider both the quantity and the quality of the material used. Where the amount of the material to be used is a relatively small percentage of the copyright protected work and is not central or materially important to the copyright protected work, the court is more likely to find the use to be fair use, especially where the purpose is to analyze or criticize the work. However, even if the amount copied is miniscule, if central to the copyright protected work the court more likely than not will find the use not to be fair use, but actual infringement.
Under the fair use doctrine, for use to be considered fair, the author should take no more than what is absolutely necessary to convey your criticism or commentary. When in doubt, seek permission or consult with a licensed competent attorney.
4. The Effect Such Use Will Have on the Commercial Value and Market for the Copyrighted Work Being Used.
The final factor to be considered when determining whether the use is a fair use or infringement tries to determine the effect such use will have on the commercial value for the copyrighted work. Where the use will likely undercut the market for the original copyrighted work, the court is much more likely to find the use not to be fair. Similarly if the intended use will compete directly with the original copyrighted work, the court is much more likely to find the use not to be fair.
Conclusion
Although the fourth factor is often considered the most important factor, all four factors should be carefully balanced and weighed. Since there is no hard fast rule, you should always err on the side of seeking permission. If you are in doubt, or unsure what to do, consult a competent attorney familiar with the law of copyright.
