Guide to Fair Use

By Elspeth Crawford
If an author has a copyright in his or her work, whether that work is a book, a piece of software, or some other creative endeavor, they are granted exclusive control over how the work can be used. However, that control is not complete. Other people can make limited use of that work so long as their use falls within certain guidelines. Those guidelines are called fair use, and this guide will look at their utility and limits.

Bounds of Fair Use
The bounds of fair use are set out in the Copyright Act of 1976. That law states that people are allowed to copy a creative work without permission from the author for certain limited purposes, including criticism, comment, news reporting, teaching, scholarship, or research. Sometimes, deciding whether fair use applies is easy. For example, if a teacher makes multiple copies of an excerpt from a copyrighted book to hand out to his or her students, such copying would be a fair use of the book. It would fall under the ‘teaching’ allowance specified in the law. However, most determinations of fair use are not so cut and dry.

Determining whether something falls within the ambit of fair use is a factually intensive process. Courts look at four different factors when making their decision. Not all of the factors apply to all works, and no one factor is determinative. The four factors are:

Purpose and Character of the Use
When deciding whether a work falls under fair use, a court will look at the purpose of the work. One thing they’ll look at is whether the work is commercial in nature. Say someone has taken a copyrighted photograph and used it in a collage. If they intend to sell this collage as its own work, the work would be commercial. If a work is commercial, it stands less of a chance of being found to be a fair use. If the artist did not intend to sell the collage but made it for his or her own personal benefit, it would not be commercial and would stand a better chance of being found to be a fair use.

However, even if that collage were commercial, it’s no guarantee that its creation can't be a fair use. Courts also look at whether a work is transformative, or sufficiently different from the original work so as not to be confused with it. Parodies fall into this category, as do works that re-appropriate the original work in a way that the original author did not contemplate.

Nature of the Copyrighted Work
The law has determined that some works, specifically those that are creative like novels and movies, are more worthy of copyright protection than those works that are not creative but just reproduce information, like the phone book. Information in something like the phone book is public and copying it would likely be a fair use, whereas copying a movie, which is a highly creative work, would not be.

Amount of Copyrighted Work Used
Say that a literary critic is reviewing a book and wants to print a short excerpt within the body of his review. Because the critic does not have a copyright in that book, he is in violation of the author’s copyright by printing a portion of it. However, a court may let this slide as a fair use because the amount of the book being reprinted is small when considering the book as a whole. The smaller amount of a copyrighted work someone uses when copying that work, the more likely a court is to hold that the copying is a fair use. Courts also look at whether the portion being copied is particularly important to the identity of the original work.

Effect of the Use on the Potential Value of the Copyrighted Work
The fourth factor in the fair use test, often called the most important factor, asks whether the potentially infringing work cuts in on a market which should be reserved for the original work. For example, if someone took it upon themselves to write and distribute a self-penned sequel to a popular novel, such a work would cut in on the sequel market for the original work. The unauthorized sequel would fail under this factor. If, however, that same someone wrote a parody of the original novel, that would likely be a fair use since the original author and copyright holder is very unlikely to want to enter into a market for books that make fun of his or her own creation. Basically, this factor asks whether an infringing work may cost the original copyright holder money. If it does, it’s less likely to be a fair use. If it does not, it’s more likely to be a fair use.

Remember that no one of the above four factors is determinative when deciding what is a fair use and what is not. A work can fail under one or two of the factors but still be considered a fair use if it succeeds under the remaining ones. Fair use is a complicated area of the law, and you should consult a copyright attorney if you have questions about whether a work you have created is protected under it.

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