Fair Use Law

Under the doctrine of "fair use," the law allows the use of portions of copyrighted work without permission from the owner. Fair use is a defense to copyright infringement. This means that an unauthorized use of copyrighted material is excusable if it falls under the principle of fair use. Although the law does provide guidelines for making this assessment, determining fair use is not always easy since it is a grey area of the law. Consequently, courts make decisions on a case-by-case basis.

What Work Does Copyright Protect

Under Title 17 of the U.S. Code, copyright owners have the right to limit the use of their creative work. An owner has the right to distribute, reproduce, display, make derivatives, or perform the work in public. This right applies to both published and unpublished works fixed in a tangible medium. Creative works include:
■Literature
■Music
■Motion pictures and other audiovisual productions
■Sound recordings
■Pantomimes and choreography
■Pictorial, graphic, and sculptures
■Architectural designs

Copyright law does not apply to ideas and facts; names, pen names, titles, or slogans; extemporaneous speeches; blank forms and standardized material; and government works. Although copyright law does not protect facts and ideas, copyright protects the author's phrasing or form of expression.

Fair Uses of Copyrighted Material

Under the Copyright Act, the fair use of copyrighted material without permission is allowed when used for the following purposes:
■Criticism
■Comment
■News reporting
■Teaching, includes making copies for use in the classroom
■Scholarship and research
■Parody

These uses do not grant the right to use the copyrighted work in its entirety. Rather, the use should be limited to quoting, excerpting, summarizing, and making educational copies of the material.

The Fair Use Four-Factor Test

Courts consider four factors when evaluating whether an unauthorized use of copyrighted material is fair. The following factors are guidelines under the Copyright Act:
■ The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes: Courts consider whether the use is transformative. For instance, was the purpose of the new use transformative, did a new expression change the original work, or did the use create new information or lead to new ideas? The more transformative a new work, the more likely a court will consider it fair use.
■ The nature of the copyrighted work: Courts look at whether the copyrighted work is creative or factual and whether it is published or unpublished. Creative works, such as fiction, creative nonfiction, pictures, and graphic works, typically receive more protection. Factual works, such as history accounts and scientific works, receive less protection because of the benefit to society from the exchange of ideas . Authors have a right to decide when to publish their work, so the use of unpublished works without permission is less acceptable than using published works.
■ The amount and substantiality of the portion used in relation to the copyrighted work as a whole: Courts consider h ow much material was copied and w as the copied material a central part of the original work. When a large portion of the entire copyrighted material is used or it includes the use of a central point , it is less likely that a court will consider it fair use. For, parody, however, it is acceptable to borrow a large portion and to use the central part of the original work.
■ The effect of the use upon the potential market for or value of the copyrighted work: A court will look closely at a use that deprives a copyright holder of income, regardless of whether the new material is competing in the same market . Important factors include the current market and the potential market.

Courts may use additional factors to determine whether the unauthorized use of copyrighted material is fair.

Court Decisions on Fair Use

Courts evaluate fair use on a case-by-case basis. The following are cases in which a court ruled that an unauthorized use was fair:
■Google's reproduction of images into thumbnails to display on search results pages was fair use because the alteration of the image was transformative, and therefore, it outweighed the commercial benefit received by Google.
■A biographer's quotation of 16 unpublished documents was fair use because it comprised no more than 1% of Richard Wright's unpublished documents and it was for an informational purpose.

The following are cases in which a court ruled that unauthorized use was not fair:
■It was not fair use for the Nation magazine to publish central parts of former President Gerald Ford's memoir prior to its publication because it substantially decreased its marketability.
■Paraphrasing a substantial portion of author J.D. Salinger's unpublished letters in a biography was not excusable under the fair use doctrine because the general public would view them in this format for the first time and the paraphrased material was a central part of the biography.