Today, fair use law reflects the codification of Section 107 of the Copyright Act that provides
four criteria that are to be balanced in a case-by-case analysis of the facts and situation of the
dispute.
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Fair use provision of the 1976 Copyright Act, 17 U.S.C. 107, states “the fair use of a
copyrighted work for purposes such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use made of a work in any
particular case is a fair use the factors to be considered shall include –
o 1. The purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes.
o 2. The nature of the copyrighted work;
o 3. The amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
o The effect of the use upon the potential market for or value of the copyrighted
work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding
is made upon consideration of all the above factors.
The fair use provision allows expressions that involve the copying of existing,
copyrighted works as long as they serve a public policy purpose that approaches the
public policy purpose for which we granted a copyright in the first place.
The use must benefit the public with something valuable, such as criticism, comment,
news reporting, teaching, scholarship, or research.
A use that is largely self-serving and commercially motivated will rarely be designated as
fair unless the benefits it brings to the public are so great that the law excuses the
selfishness and money-grubbing.
Unfair uses:
- Any attempt at copying that primarily benefits the copyist by saving them time, effort,
and money, as in saving them the drudgery of thinking up something new, is generally
going to be evaluated as unfair.
Four factors used to evaluate fair use:
- 1. Purpose and character of the use
- 2. The nature of the original work
- 3. Amount taken,
- 4. Effect on the market for the original.
The Supreme Court stated in Campbell v. Acuff-Rose (1994) that the doctrine of fair use and
the interpretive principles of fair use are to be balanced against one another. Therefore,
because an analysis is to be done on a case-by-case basis, there is no single factor in the four
elements of Section 107 which can be determinative of what is constituted as fair use.
Transformative fair use:
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Highly transformative works are fair; non-transformed works must find some
justification for their fairness (such as a classic fair use for education or comment and
criticism).
The Supreme Court adopted this overarching fair use concept by realizing that
transformation of existing material creates new material – new expression that
communicates new ideas and new meaning through new content or a new context. And
the promotion of new expression to benefit the public was the reason we have
copyright protection in the first place.
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The strongest transformative fair uses are those that modify the contents, function, and
purpose in a significant and obvious manner, turning the meaning of the original work
on its head, or openly criticizing the original work.
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Uses that do not modify the contents, function, or purpose of the original works in a
significant and obvious manner fail the transformative test and are found not to be fair.