People often claim one thing or another must surely be protected by “fair use.” It is used quite lightly in casual speech. This phrase, however, has a specific legal meaning and context. So let’s define it a little more specifically before moving on.
First, the fair use we most often hear about concerns copyright law. Copyright law protects the artistic expression of ideas, such as in music or images. The fair use of corporate logos or slogans (such as Apple Computer’s logo or Nike’s “Just do it” slogan) falls under Trademark Law, and this area functions a little differently.
Now that we know we’re focusing on copyright law, we should understand what copyright law fair use protects, and how it affects copyright law generally. The most important thing to understand—and which sometimes comes as a surprise—is that there is no such thing as “automatic” or “guaranteed” fair use protection. While there are some commonly respected “fair use” areas (which we will get to a little later), fair use is decided on a case-by-case basis. The ultimate decision rests with the judge each time. It is also important to understand that fair use is often spoken of as a defense. This means that it can only be asserted once a case has been brought by a plaintiff. One cannot bring suit under fair use.
Lawyers disagree over whether the fact that fair use is often asserted as a defense goes so far as to mean that it is not a right. It is perhaps best to think of fair use as an exception to or a limitation on copyright protection– that may or may not be applied, depending on the case.
So, how do judges decide whether or not a given use of copyrighted material is permissible? The first thing to know is that they make use of a four-factor “test” listed in 17 U.S.C. § 107 (Section 107 of the Copyright Law). Judges are not limited to these factors in their analysis, and no single factor can decide the outcome on its own. Judges will also compare the possibly infringing use in the case before them to that in similar cases that have come up in the past.
The four factors are:
- How and why the copyrighted material was used and it what way (if at all) it was altered.
- The nature of the original copyrighted work itself.
- How much of the original work was used.
- The effect of the use on the market for the original work.
Furthermore, the law lists several traditionally recognized areas of fair use: “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”
Where does this leave us? While the above framework will yield different results in different cases, we can draw some general guidelines from it.
As we might expect, the smaller the amount used of the copyrighted material, the more apt the use is to be construed as fair use. If a small amount was used, and it was just enough to get the idea of the new author across, this will weigh very favorably in the direction of fair use. If large tracts of it were used for no specific reason, the analysis will tend to go the other way.
Was the material used for commercial purposes? This is critical. A commercial purpose doesn’t rule out fair use protection, but does tend to weigh against it. If the user of the copyrighted material is profiting financially from the use, this will be looked at quite carefully. Is the unauthorized user simply taking advantage of someone else’s creation, adding little or nothing to it of their own? How is the market for the original work affected? Will consumers no longer feel the need to buy the original work because of the way it is now being used? On the other hand, if the new work serves a completely different function from the original, this will certainly weigh in the direction of fair use.
Judges talk about whether the use was “transformative.” This again refers to whether the material was used in a novel way, or has been changed to such a degree that it might be considered something altogether new. This is a very fact-specific sort of analysis and is difficult to determine objectively. It borders on outright determinations of artistic merit. The more novel and creative the new use is found to be, the more this will weigh toward fair use protection.
On the other hand, the creativity of the original work can affect the analysis. If the original is closer to a listing of facts (such as a specific type of telephone directory), this will weigh in the direction of fair use. The facts or ideas themselves in the original work cannot be protected, as facts and ideas must be free to be used by others. Only the creative expression of facts and ideas is protectable. If on the other hand, the original work being used is highly creative or artistic, it may be more difficult to obtain fair use protection for its re-use by someone who does not own rights to it.
Also, the use of copyrighted material for parody is often also protected. In the past, most uses involving these areas have been considered to pass the four-factor test, and are generally protected. Fair use takes into account the social effect of such uses. In general, we want the law to be conducive to things like teaching and news reporting, parody and social criticism because these are seen to benefit society.
Lastly, it is of course safest, whenever possible, to obtain a license to the work one intends to use. Many comedians and parodists whose satires would most likely be protected under fair use nonetheless opt to secure licenses every time. Given the factual and subjective basis of fair use evaluation, obtaining a license if often the wisest choice and will eliminate worries later on.