Section 107 of the Copyright Act “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching … scholarship, or research, is not an infringement of copyright.” 17 U.S.C. § 107. The question of fair use has been described as “the most troublesome in the whole law of copyright,” and while no definition of “fair use” has been coined that is workable in every case, the U.S. Supreme Court has noted that fair use is “traditionally defined” as “a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.” The analysis is a mixed question of both fact and law and requires a case-by-case analysis to determine whether the use at issue is “fair use.”

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In evaluating fair use, the Copyright Act lists four factors that a court must consider in determining whether a particular use is a “fair use:”

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes – analysis of this first factor usually includes determining whether the use is “transformative” meaning it does not merely supersede the object of the original work but adds something new, with a further or additional purpose or character that alters the original work by adding new expression, meaning, or message. However, merely repackaging or republishing the original content does not equate to “transformative use.” While such transformative use is not required, it has been held to “lie at the heart of the fair use doctrine.”

Also under this factor, courts look to whether the use is commercial or non-commercial. And while commercial motive is relevant to the analysis, it is not dispositive.

(2) the nature of the copyrighted work – this includes whether the work is more creative or factual in nature (with greater leeway allowed for factual content) and is published or unpublished (with unpublished weighing against a finding of fair use).

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole -- analysis of this factor includes both the quantitative amount of the copyrighted work used as well as the qualitative importance of the portion copied (again, recognizing that truly creative content is closer to the core of the intended copyright protection).

(4) the effect of the use upon the potential market for or value of the copyrighted work – this factor considers the extent of harm to the copyright owner (if any) and whether such use would result in a substantially adverse impact on the potential market for the original. In other words, fair use is copying by others that does not materially impair the marketability of the original work.

These factors are non-exclusive and courts are instructed to weigh them together rather than treating them in isolation, although the fourth factor is often given greater weight. In short, fair use is an equitable rule fashioned by judges to balance an author’s right to compensation for his work on the one hand, with the public’s interest in the widest possible distribution of ideas and information on the other.

For more information on copyright protections in general, see Software Protection & Copyright Services.

Klemchuk PLLC is a leading IP law firm based in Dallas, Texas, focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. Our experienced attorneys assist clients in safeguarding innovation and expanding market share through strategic investments in intellectual property.

This article is provided for informational purposes only and does not constitute legal advice. For guidance on specific legal matters under federal, state, or local laws, please consult with our IP Lawyers.

What is the Fair Use Doctrine in Copyright Law?

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