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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