The fair use doctrine refers to an aspect of U.S. copyright law that provides for the licit, non-licensed citation or
incorporation of copyrighted material in another author's work under certain, specifiable conditions. The term "fair use" is
unique to the United States; a similar principle, fair dealing, exists in
some other common law jurisdictions.
Fair use makes copyrighted work available to the public as raw material without the need for permission or clearance, so long
as such free usage serves the purpose of copyright law, which the U.S. Constitution defines as the promotion of "the Progress of
Science and useful Arts" (I.1.8), better than the legal enforcement of claims of infringement. The doctrine hereby attempts to
balance the interests of individual copyright holders with the social or cultural
benefits that follow from the creation and distribution of derivative works. Insofar as this doctrine protects forms of
expression that might otherwise be enjoined as copyright infringing, it has been related to First Amendment free speech protections in the U.S. Constitution.
Fair use under United States law
The legal concept of "copyright" was first ratified by Britain's Statute of Anne of 1709. As room was not made for the
unauthorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a
doctrine of "fair abridgement," which later became "fair use," that recognized the utility of such actions. The doctrine only
existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. § 107 (http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=17&sec=107), excerpted here:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of
copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall
include—
-
- 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.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all
the above factors.[1] (http://www4.law.cornell.edu/uscode/17/107.html)
The four factors of analysis for fair use set forth above derive from the classic opinion of Justice Story in Folsom v.
Marsh (1841), in which the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington in order to produce a separate two-volume work of his
own. The court rejected the defendant's fair use defense with the following explanation:
[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the
purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of
the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a
use will be deemed in law a piracy... In short, we must often... look to the nature and objects of the selections made, the
quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or
supersede the objects, of the original work.
It is important to note that once these factors were codified as guidelines in USC § 107, they were not rendered exclusive.
The section was intended by Congress to restate, but not replace, the prior judge-made law. Courts are still entitled to consider
other factors as well.
Purpose and character
The first factor questions whether the use under consideration helps fulfill the intention of copyright law to stimulate
creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for
reasons of, say, personal profit. In order to justify the use as fair, one must demonstrate how it either advances knowledge or
the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted
as transformative, opposed to as merely derivative. When Tom Forsythe appropriated Barbie dolls for his photography
project "Food Chain Barbie", Mattel lost its claims of copyright and trademark infringement against him because his work
effectively parodies Barbie and the values she represents (cf. the 2003 9th Circuit case Mattel Inc. v. Walking Mountain
Productions). However, when Jeff Koons tried to justify his appropriation of Art Rogers' photograph "Puppies" in his
sculpture "String of Puppies" with the same 'parody' defense, he lost because his work was not presented as a parody of Rogers'
photograph in particular, but of society at large, which was deemed insufficiently justificatory (see Art Rogers v. Jeff
Koons, 960 F.2d 301). Thus, even if a secondary work proves transformative, it must be appropriately so.
The subfactor mentioned in the legislation above, "whether such use is of a commercial nature or is for nonprofit educational
purposes," has recently been deemphasized in some Circuits "since many, if not most, secondary uses seek at least some measure of
commercial gain from their use" (American Geophysical Union, 60 F.3d at 921). More important is whether the use fulfills
any of the "preamble purposes" also mentioned in the legislation above, as these have been interpreted as paradigmatically
"transformative". Although Judge Pierre Leval has distinguished the first factor as "the soul of fair use," it alone is not
determinative. For example, not every educational usage is protected by fair use (see Macmillan Co. v. King).
Nature of the copied work
Although the Supreme Court
has ruled that the availability of copyright protection should not depend on the artistic quality or merit of the work at issue,
fair use analyses nevertheless consider certain aspects of the copied work, such as whether it is fictional or non-fictional, to
be germane. In order to prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas
cannot be copyrighted—only their particular expression or fixation merits such protection. (See idea-expression divide.) On the other hand, the social utility
of freely available information can weigh against the appropriateness of copyright for certain fixations. The Zapruder film of
the assassination of President Kennedy, for example, was purchased and copyrighted by Time magazine. Yet their copyright
was not upheld, in the name of the public interest, when they tried to enjoin the reproduction of stills from the film in a
history book on the subject (see Time Inc. v. Bernard Geis Associates, 293 F. Supp. 130).
Following the decisions of the Second Circuit in Salinger v. Random House, Inc., 650 F. Supp. 413 (S.D.N.Y. 1986), and
in New Era Publications Int'l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988), whether the copied work has been
previously published suddenly trumped all other considerations because of, in the words of one commentator, "the original
author's interest in controlling the circumstances of the first public revelation of his work, and his right, if he so chooses,
not to publish at all." Yet some view this importation of certain aspects of France's droit moral d'artiste into American
copyright law as "bizarre and contradictory" because it sometimes grants greater protection to works that were created for
private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially
conceived to protect. This is not to claim that unpublished works, or, more specifically, works not intended for publication, do
not deserve legal protection, but that any such protection should come from laws about privacy, rather than from laws about
copyright. This debate is still open in the courts.
Amount and substantiality
The third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new
work. In general, the less that is used in relation to the whole, e.g., a few sentences of a text for a book review, the more
likely that the sample will be considered fair use. Yet see Sony Corp. v. Universal City Studios for a case in which substantial copying
— entire programs for private viewing — was upheld as fair use. Conversely, in Harper & Row, Publishers, Inc.
v. Nation Enters., 471 U.S. 539 (1985), the use of less than 400 words from President Ford's memoir by a news magazine was
interpreted as infringement because those few words represented "the heart of the book" and were, as such, substantial.
Prior to 1991, sampling in certain genres of music was accepted practice and such copyright considerations as these were
viewed as largely irrelevant. The infamously strict decision against the rapper Biz Markie's appropriation of a Gilbert
O'Sullivan song in the case Grand Upright v. Warner, 780 F. Supp. 182 (S.D.N.Y. 1991), changed practices and opinions
overnight. Samples now had to be licensed, so long as they rose "to a level of legally cognizable appropriation" (see
Bridgeport Music Inc. v. Dimension Films, 230 F. Supp.2d at 841). In other words, de minimis sampling was still
considered fair and free because, traditionally, "the law does not care about trifles." The recent Sixth Circuit Court decision (http://pacer.ca6.uscourts.gov/opinions.pdf/04a0297p-06.pdf) in the appeal to Bridgeport
Music has reversed this standing. The new rule in that Circuit is even more strict in its rendering of copyright law: "get a
license or do not sample." Fair use does not come into play at all.
Effect upon work's value
The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit
his original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the
copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original.
The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. See
Sony Corp. v. Universal City
Studios, 464 U.S. 417, 451 (1984), where the copyright owner, Universal, failed to provide any empirical evidence that
the use of Betamax had either reduced their viewership or negatively impacted their business. In the Nation case regarding
President Ford's memoirs above, the Supreme Court labelled this factor "the single most important element of fair use" (471 U.S.
at 566) and it has indeed enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent
announcement in Campbell v. Acuff-Rose Music, Inc., 510 U.S. at 578 (1994), that "all [four factors] are to be explored,
and the results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation.
In evaluating the fourth factor, courts often consider two kinds of harm to the potential market of the original work. First,
courts consider whether the use in question acts as a direct market substitute for the original work. In the words of the Supreme
Court in Acuff-Rose Music, "when a commercial use amounts to mere duplication of the entirety of the original, it clearly
supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to
the original will occur." In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized
movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner's official trailers.
See Video Pipeline v. Buena Vista, 342 F.3d 191 (3d Cir. 2003). On the other hand, one might well question whether Roland
Barthes' S/Z clearly supersedes Honore de Balzac's short story "Sarrasine" as a market replacement, since it reproduces
the entirety of the latter, though only in short fragments followed by much critical explication by Barthes. Second, courts also
consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a
licensing market. This consideration has weighed against commercial copy shops that make copies of articles in course-packs for
college students, when a market already existed for the licensing of course-pack copies. See Princeton Univ. Press v. Michigan
Document Services, 99 F.3d 1381 (6th Cir. 1999).
It is important to note that courts recognize that certain kinds of market harm do not oppose fair use, such as when a parody
or negative review impairs the market of the original work. Fair use considerations may not shield a work against adverse
criticism.
Practical effect of fair use defense
The practical effect of this law and the court decisions following it is that it is usually possible to quote from a
copyrighted work in order to criticize or comment upon it, teach students about it, and possibly for other uses. Certain
well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no
problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the
factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will
probably fall under fair use even though he may sell his review commercially. But a non-profit educational website that
reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the
website affects the market for the magazine, even though the website itself is non-commercial.
Fair use as a defense
Fair use is an affirmative defense to copyright
infringement. This means that if the defendant's actions do not constitute an infringement of the plaintiff's rights (for
example, because the plaintiff's work was not copyrighted, or the defendant's work did not borrow from it sufficiently), fair use
does not even arise as an issue. However, it also means that, once the plaintiff has proven (or the defendant concedes) that the
defendant has committed an infringing act, the defendant then bears the burden of proving in court that his copying should nonetheless be excused as a fair use of the plaintiff's
work.
Because of the defendant's burden of proof, some copyright owners frequently make claims of infringement even in circumstances
where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources
in his defense. This type of frivolous lawsuit is part of a much larger problem in First Amendment law; see Strategic lawsuit
against public participation.
Because paying a royalty fee may be much less expensive than having a potential copyright suit threaten the publication of a
completed work in which a publisher has invested significant resources, many authors may seek a license even for uses that
copyright law ostensibly permits without liability.
Fair use and parody
Producers or creators of parodies of a copyrighted work have been sued for
infringement by the targets of their ridicule, even though such use may be protected as fair use. The fair use cases addressing
parodies distinguish between parodies — using a work in order to poke fun or comment on the work itself — and satires
— using a work to poke fun or comment on something else. Courts have been more willing to grant fair use protections to
parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use
factors.
In Campbell v. Acuff-Rose Music
(1994), the Supreme Court recognized parody as a fair use, even when done for profit. Roy Orbison's publisher, Acuff-Rose Music Inc.,
had sued 2 Live Crew in 1989 for their
use of Orbison's "Oh, Pretty Woman" in a mocking rap version with
altered lyrics. The Supreme Court viewed 2 Live Crew's version as a ridiculing commentary on the earlier work, and ruled that
when the parody was itself the product rather than used for mere advertising, commercial sale did not bar the defense. The
Campbell court also distinguished parodies from satire, which they described as
a broader social critique not intrinsically tied to ridicule of a specific work, and so not deserving of the same use exceptions
as parody because the satirist's ideas are capable of expression without the use of the other particular work.
In a more recent parody case, Suntrust v.
Houghton Mifflin, a suit was brought unsuccessfully against the publication of The Wind Done Gone, which reused many of the characters and situations from Gone with the Wind, but told the events from the point of view of
the slaves rather than the slaveholders. The Eleventh Circuit, applying Campbell, recognized that The
Wind Done Gone was a protected parody, and vacated the district court's injunction against its publication.
Fair use on the Internet
A recent court case, Kelly v.
Arriba Soft Corporation, provides and develops the relationship between thumbnails, inline linking and fair use. In the lower
District Court case on a motion for summary judgment Arriba Soft
was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly's
website in Arriba's image search engine. That decision was appealed and
contested by Internet rights activists such as the Electronic Frontier Foundation, who argued that it is clearly covered under fair use. On
appeal, the 9th District Court of Appeals found that the thumbnails were fair use and remanded the case to the lower court for
trial after issuing a revised opinion on July 7, 2003. The remaining issues were resolved with a default judgement after Arriba
Soft had experienced significant financial problems and failed to reach a negotiated settlement.
Common misunderstandings
Because of the deliberate ambiguity of fair use, it is commonly misunderstood. Here are some of the more common
misunderstandings, explaining why they are wrong:
- It's copyrighted, so it can't be fair use. If a work is not copyrighted it is in the public domain and you can use it
anyway. The first requirement for fair use is that the work is copyrighted.
- Acknowledgement of the source makes a use fair. Giving the name of the photographer or author may help, but it is not
sufficient on its own.
Fair use and trademark law
In the U.S., there is also a fair use defense in trademark law based on
similar principles as the doctrine under copyright (such as free speech), but with different exceptions. Fair use is consistent
with the more limited protection granted to trademarks, generally specific only to the particular product market and geographic
area of the trademark owner.
Most trademarks are adopted from words or symbols already common to the culture (such as Apple), instead of being invented by the mark owner (such as Kodak).
Courts have recognized that ownership in the mark cannot prevent others from using the word or symbol in these other senses, such
as if the trademark is a descriptive word or common symbol such as a pine tree. This means that the less distinctive or original
the trademark, the less able the trademark owner will be to control how it is used.
Trademarks may also be used by a nonowner nominatively—to refer to the actual trademarked product or its source.
In addition to protecting product criticism and analysis, U.S. law actually encourages nominative usage by competitors in the
form of comparative advertising.
Both of these exceptions require that the mark not be used by the nonowner in a way that would be likely to confuse consumers
about the source of their (or the trademark owner's) product. Generally this translates into the requirement, similar to that in
fair use under copyright, that no more of the trademark is used than is necessary for the legitimate purpose.
Comparison with other countries
The United States is the only country with a fair use doctrine. However, comparable copyright limitations can be found in many
nations' copyright statutes, though these differ in scope. Most other common
law countries have a related doctrine known as fair dealing,
which is defined in a constrained manner through an enumerated list of causes for exemption that allows little room for judicial interpretation. Civil law
countries have codified similarly specific and narrowly drawn exceptions. Fair use, however, tends to be an open-ended legal
doctrine, as statutory factors are balanced by U.S. judges on a case-by-case basis rather than strictly applied.
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