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What is the Fair Use Exception to Copyright Infringement?

Question:  What are the limits of the "fair use Exception" under the  US Copyright act?

Note:  We are not lawyers, and this page is not legal advice.  For legal advice, consult a qualified attorney, not this web page.

An individual may reproduce a copyrighted work, however, [when he does so] for a 'fair use'; the copyright owner does not possess the exclusive right to such a use. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984).  This principle is embodied in the Copyright Act: "the fair use of a copyrighted work . . . is not an infringement of copyright." 17 U.S.C. § 107 (West Supp. 1992).  

The doctrine of fair use creates a privilege "in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner . . . ." Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 306 (2d Cir. 1966), quoting Ball, Copyright and Literary Property 260 (1944). 

            Fair use is an "equitable rule of reason," allowing courts to find certain uses noninfringing where such uses benefit the public and further the overall purpose of the Copyright Act.  Sony Corp. of America, 464 U.S. at 448 & n.31; Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1174 (5th Cir. 1980).  

It permits the unauthorized use or reproduction of a copyrighted work "for purposes such as criticism, comment, news reporting, teaching, scholarship, or research." 17 U.S.C. § 107.  

The rationale for the fair use doctrine is that, when the free flow of information is sufficiently vital, it should override the copyright holder's interest in the exclusive control of the work.  See Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151-52 (9th Cir. 1986).  

Put more simply, the doctrine distinguishes between "a true scholar and a chiseler who infringes a work for personal profit."  Hearings on Bills for the General Revision of the Copyright Law Before the House Comm. on the Judiciary, 89th Cong. 1st Sess., ser. 8, pt. 3, at 1706 (1966) (Statement of John Schulman).

            Consistent with this rationale, all courts consider four statutory factors in evaluating whether fair use exists.  They are:

(1) The purpose and character of the use, including whether such use is of a commercial nature . . . ;

(2) The nature of the copyrighted work

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) The effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107.

1. Purpose and Character of the Work

            The Supreme Court has held that "commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the holder of the copyright." Sony Corp. of America, 464 U.S. at 451.  Notwithstanding the fact that an alleged infringer may gain commercially, however, courts must "consider the public benefit resulting from a particular use."  Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510, 1523 (9th Cir. 1992).  

Typically, this public benefit involves "the development of art, science, and industry," Rosemont Enters. v. Random House, Inc., 366 F.2d 303, 307 (2nd Cir. 1966), cert. denied, 385 U.S. 1009, 87 S. Ct. 714 (1967) (citations omitted), rather than the purely financial interests of customers.  The central question, when analyzing this factor, is "whether the user stands to profit from the exploitation of the copyrighted material without paying the customary price."  Harper & Row, Publrs., Inc., v. Nation Enters., 471 U.S. 539, 562, 105 S. Ct. 2218 (1985).

Moreover, in assessing "the purpose and character of the use," the fact that the new work, produced by the defendant, is "transformative" or "adds something new, with a further purpose or different character" is strong evidence that the use is a fair use.  See Harper & Row, 471 U.S. at 562.  

In fact, "the more transformative the new work, the less will be the significance of the other factors, like commercialism, that may weigh against a finding of fair use." Id. at 579.  As noted in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 114 S.Ct. 1164 (1994), a "transformative work" is one that alters the original work "with new expression, meaning, or message."

The most common example of a “transformative work” is that of a parody.  A parody, which duplicates a substantial portion of an original work in the form of a mockery, is generally found to be a fair use of copyrighted material. 

See, e.g., Campbell, 510 U.S. at 594-96, 114 S.Ct. 1164 (holding that 2 Live Crew's parody of "Oh, Pretty Woman" using the words "hairy woman" or "bald headed woman" was a transformative work, and thus constituted a fair use); Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 796-98, 800-06 (9th Cir. 2003) (concluding that photos parodying Barbie by depicting "nude Barbie dolls juxtaposed with vintage kitchen appliances" was a fair use). 

            In this sense, even exact copies can be found to be transformative, and therefore a fair use, so long as the copy serves a different function than the original work.  Kelly, 336 F.3d at 818-19. 

For example, the First Circuit has held that the republication of photos taken for a modeling portfolio in a newspaper was transformative because the republished photos served to inform, as well as entertain.  See Nunez v. Caribbean Int'l News Corp., 235 F.3d 18, 22-23 (1st Cir. 2000).

2. Nature of the Copyrighted Work

Additionally, the scope of fair use is greater when the purpose or character of the work is "informational," "functional," or "factual," rather than "creative." Sega, 977 F.2d at 1524; Moral Majority, 796 F.2d at 1152-54; N.A.D.A. Services Corp. v. Business Data of Virginia, Inc., 651 F. Supp. 44, 48 (E. D. Va. 1986).  

In addition, courts may consider whether the copyrighted work "represents a substantial investment of time and labor made in anticipation or a financial return." See MCA, Inc. v. Wilson, 677 F.2d 180, 182 (2nd Cir. 1981); Wainwright Secur., Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 96 (2nd Cir. 1977), cert. denied, 434 U.S. 1014, 98 S. Ct. 730 (1978); Allen-Myland, Inc. v. International Business Machines Corp., 746 F. Supp. 520, 534 (E.D. Pa. 1990).

            Pursuant to this second factor, when the purpose or character of the work is factual or scientific in nature, a court is more likely to find that copying is permissible under the of fair use doctrine.  Harper & Row, 471 U.S. at 563, 105 S.Ct. at 2232 ("The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.”).

            “[A] classic illustration [of fair use under this factor]. . . is quoting from another's work in order to criticize it.  The principle has most often been applied to works in the fields of science, law, medicine, history and biography.  

The fair use doctrine offers a means of balancing the exclusive rights of a copyright holder with the public's interest in dissemination of information affecting areas of universal concern, such as art, science and industry.”  Wainwright Securities, Inc. v. Wall St. Transcript Corp., 558 F.2d 91, 94 (2nd Cir. 1977). 


3. Amount and Substantiality of the Portion Used in Relation to the Copyrighted      Work as a Whole

            Copying an entire work generally weighs against a finding of fair use.  McGowan, 1993 U.S. App. LEXIS at *4 and *5.  

            For example, while the fair use doctrine permits book reviews to quote from the books being reviewed, Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345, 1351 (7th Cir.1995) (dictum), the reviewer may not quote the entire book in his review because he would be cutting into the publisher's market, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562, 105 S.Ct. 2218 (1985).

4.  Effect of the Use upon the Potential Market for or Value of the Copyrighted        Work

            The fourth factor is "undoubtedly the single most important element of fair use." Harper & Row, 471 U.S. at 566.  A use which does not materially impair the marketability of the copyrighted work will be deemed fair.  See Sony, 464 U.S. at 450; Harper v. Row, 471 U.S. at 566-67; N.A.D.A. Servs. Corp., 651 F. Supp. at 48.

            “This inquiry attempts to strike a balance between the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied.  The less adverse the effect that an alleged infringing use has on the copyright owner's expectation of gain, the less public benefit need be shown to justify the use.  Mattel, 353 F.3d at 804-05.


Note:  We are not lawyers, and this page is not legal advice.  For legal advice, consult a qualified attorney, not this web page.




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