Copyright Support

Fair Use

Questions? Email us at copyright@smu.edu

Fair Use as a doctrine has a long informal tradition, dating back to the 18th century, but its codification only came into effect with the Copyright Act of 1976. While the four factors listed below, found in 17 U.S.C. § 107, are codified, cases requiring legal interpretation of the four factors have been complicated. In this regard, the four factors should be taken only as guidelines. Courts consider all four factors in determining if use of a copyrighted work is fair or infringing.

Purpose and character of the use refers to the way the copyrighted work is used—for instance, whether the use is for commercial gain or for a non-commercial purpose such as educational study and analysis. Section 107 explicitly states examples of fair use that include “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Keep in mind that these examples must be weighed along with the other three factors before a use is deemed fair.
Courts assess the character of the use by considering whether a work has been copied verbatim or used as a basis for a work with new expression. This has been termed the “transformative use” factor, the measure by which the new work has altered or changed the meaning of the original work. U.S. Supreme Court Justice David Souter wrote in the landmark decision for the 1994 case Campbell v. Acuff-Rose Music, 510 U.S. 569 that transformative use “…adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” In cases of parodied copyrighted works, fair use was found because transformative use has been the most significant argument.

 

 

This factor refers to the attributes of the work being used. Courts consider if a work is factual or fictional in nature. Ideas and/or facts do not have copyright protections because the public good is better served by the free dissemination of information. Fictional and other creative works tend to have more protections, limiting uses allowed under fair use provisions.  

 

Also significant is whether the copyrighted work is published or unpublished. Works created and “fixed in a tangible medium of expression” on or after January 1, 1978, whether they are published or registered with the U.S. Copyright Office, have automatic copyright protections. Courts tend to grant more protections to unpublished works, arguing that the author/creator should have more protection to control when and how a work is shared or published.

 

In general, smaller quantities of a copyrighted work used will help support the case for fair use, but the statute and courts have not explicitly defined how much or how little is deemed permissible for a use to be considered fair. Each case is weighed and determined by its own unique factors. And where quantity is one element of the amount used, so too is the quality of the portion used. If the portion used constitutes the most important or memorable section of the work—the “heart of the work”—then the use may not be deemed fair by a court.

 

One notable exception to this “heart of the work” principle exists in cases of parody. Using the most recognizable, memorable features of a work is necessary in parody in order for the new work to be understood as a separate, distinctive commentary of the original work’s expression.

This fourth factor considers whether there would be an unfair effect on the market or value of the copyrighted work. This factor addresses an important aspect of copyright protections—to allow work creators to secure financial compensation and recognition for their efforts. While copyright law seeks to provide a balance between the public good of access to knowledge and information, courts remain sensitive the possible effect that an unfair use may have on a creator’s income or potential market.