Fair use

The fair use doctrine is a body of law and court decisions which provides for limitations and exceptions to copyright protection in the United States. If a use is fair use, the copyright holder has no rights to control that use and no license or permission is required: you can simply go ahead and make the copies. Fair use is unique to the United States, but a similar principle, fair dealing, exists in many other countries.

Fair use allows such things as these, with no license required:

• Including a reduced portion of a work as part of a description or review of that work, its influence or its effects. The reduced portion can be some of the words, a cropped image, a reduced resolution image (the reduction discards the fine detail of the work), a sample of a musical work, a clip or frame of a video or film or whatever else is appropriate. This use is permitted so that copyright holders cannot use their copyright to stifle negative criticism.
• Helping people to find a work. Search engines such as Google use reduced resolution portions of images to help people locate the image they are interested in.
• Helping people to decide to purchase a work, by including parts of the work in descriptions. Retailers, particularly electronic retailers such as Amazon.com, commonly make fair use of cover art or portions of a work to help customers to decide to purchase a work, in the online situation effectively duplicating the normal shopping browsing experience.
• Parody of a work, where the copyright holder may strongly dislike the use of the work being made fun of, but society benefits from the discourse involved. The rap parody of the song "Oh Pretty Woman" and The Wind Done Gone, a parody of Gone With The Wind from the viewpoint of the slaves, are examples.
• Copying a complete work to time shift or increase the market may be fine, as was ruled in the Betamax video recorder case and for cable television operators. However, copying the whole of a work makes a fair use claim more difficult. Fair dealing is sometimes implemented with a list of acceptable uses, while these two situations applied the flexible fair use tests to new technology.

Fair use attempts to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works, by allowing certain limited uses that would otherwise be considered infringement. It is also considered to be an accommodation of the free speech protections of the First Amendment to the U.S. Constitution.

Fair use is also a doctrine that applies to other areas of intellectual property law such as trademarks.

Fair use in the U.S. grew out of the English common law doctrine of fair abridgement. It was first applied in the U.S. in Folsom v. Marsh (1841), where the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington to make a two-volume work. The court rejected the defendant's fair use defense with the following explication of the doctrine:

[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.

The Folsom court went on to formulate the basis for the factors used today in an analysis of the fair use defense. It continued to be a purely judge-made and applied law until it was finally codified as part of the 1976 Copyright Act at 17 USC § 107, excerpted here:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, 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—

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. 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.[1]

It is important to note that the 4 factors identified in Section 107 are not exclusive. Courts are entitled to consider other factors, as well.

This is basically the intention and motivation behind the use; for example, there is a difference between a few shots taken from a film for a nonprofit review of the film and taking a few shots to include in a for-profit compilation of film reviews (though a for profit review may be considered news reporting). If it is obvious that the user is attempting to make a profit from the use, then it suggests that it is more likely that the use is infringement unless the use fits within the various "preamble purposes". However as can be seen in the parody cases discussed below such a commercial use is not dispositive as there are ways to use substantial portions of the work and still successfully claim fair use. Nonprofit or educational uses are generally seen to be given more latitude than for profit endeavors.

This first factor is divided into several subfactors: (1) the commercial or nonprofit educational nature of the use (discussed above); (2) the "preamble purposes", i.e. criticism, comment, news reporting, teaching, scholarship, and research (this list is not restrictive, and falling within one of these purposes does not create a presumption of fair use, it is just one factor to consider) (3) the degree to which the work has been transformed, has the fair use added to the original work in some way giving it a different character, or adding the original and giving it a new meaning or message. Not all educational use is protected by fair use; see Macmillan Co. v. King.

Though according to the Supreme Court, copyright law is not supposed to discriminate based upon the quality or artistic merit of the work at issue, fair use analysis nonetheless looks at whether the copied work was creative or informative. Facts and ideas are unprotected—the particular expression of those facts or ideas is what merits copyrightability. (see idea-expression divide) In application to written works, this factor will tend to weigh for a copying defendant if the original work was a work of nonfiction rather than fiction or fantasy. Functional images—those that are merely illustrative of their subject matter or serve a purely utilitarian purpose—are also more likely to support a finding of fair use than more fanciful, expressive ones.

Also considered critical under this factor is whether or not the original work has been published and/or distributed to the public. Copyright law highly values the author's right to control how his work is first released to the public, and so a work's unpublished nature will tend to weigh against a finding of fair use.

This relates to how much of the original copyrighted work is used in the new work; if only a very small amount is used in relation to the original (perhaps a few sentences for a book review) then chances are that the sample is a case of fair use. However, if a very substantial amount is used (perhaps an entire chapter, taken verbatim) then this will often be considered copyright infringement. See Sony Corp. v. Universal City Studios for an example of substantial copying that was upheld as fair use.

For several years some decisions led many to suppose that one of the few cases where this factor was irrelevant was in sampling a piece of a copyrighted sound recording. Subsequent decisions have shown that this is not the case and a normal fair use analysis must be performed. The US National Association of Music Retailers is one trade group which believes that sampling is not inevitably infringement, in the case of its members when the sample is used as part of the process of selling new or used musical works (position statement).

In regards to the digital reproduction of images it may be argued that a lower resolution sample of the image (i.e. thumbnails) is a lesser sample of the image (the sound recording sample is not analogous here) and thus the whole image is only being approximated by the lower resolution sample (limiting further reproduction outside an informational context) see the Kelly v. Arriba Soft Corporation case below.

This fourth factor considers the effect that the use of the copyrighted material has upon the copyright owner's ability to exploit the original work. Courts generally view this as the most important of the four statutory fair use factors. The court asks not just whether the defendant's own use of the work harms the market, but also whether such use, if it became widespread, would harm the market for the original. The burden of proof on the fourth factor rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. See Sony v. Universal City Studios, 464 U.S. 417, 451 (1984).

In evaluating the fourth factor, courts generally consider two kinds of harm to the market for the original work. First, the court will consider whether the use in question acts as a direct market substitute for the original work. For example, in the words of the Supreme Court in Campbell v. Acuff-Rose Music, "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supercedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur." To take a concrete example, a court found that this factor cut against a defendant who made unauthorized movie trailers for video retailers, where these unauthorized trailers were direct substitutes for the copyright owner's own official trailers for the same films. See Video Pipeline v. Buena Vista, 342 F.3d 191 (3d Cir. 2003).

But courts will also consider market harm beyond direct substitution. In particular, they will consider whether a future, potential market might be harmed, or whether the market for licensing derivative uses might be harmed. For example, the fourth factor has cut against commercial copy shops who make copies of articles in course-packs for college students, where there was an existing market for licensing course-pack copies. See Princeton Univ. Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir. 1999). The question is whether there is already an existing market for licensing derivative works, or whether it is likely that one might develop.

It is important to note, however, that certain kinds of market harm may be discounted by courts in some situations. Where a parody or negative review is concerned, the work for the original might be harmed. Nevertheless, the courts refuse to recognize this harm as one that is cognizable under copyright law.

The practical effect of this law and the court decisions following it is that it is usually possible to quote from a copyrighted work in order to criticize or comment upon it, teach students about it, and possibly for other uses. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though he may sell his review commercially. But a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

Fair use is an affirmative defense to copyright infringement. This means that if the defendant's actions do not constitute an infringement of the plaintiff's rights (for example, because the plaintiff's work was not copyrighted, or the defendant's work did not borrow from it sufficiently), fair use does not even arise as an issue. However, it also means that, once the plaintiff has proven (or the defendant concedes) that the defendant has committed an infringing act, the defendant then bears the burden of proving in court that his copying should nonetheless be excused as a fair use of the plaintiff's work.

Because of the defendant's burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense. Because paying a royalty fee may be much less expensive than having a potential copyright suit threaten the publication of a completed work in which a publisher has invested significant resources, many authors may seek a license even for uses that copyright law ostensibly permits without liability.

Producers or creators of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. The fair use cases addressing parodies distinguish between parodies - using a work in order to poke fun or comment on the work itself - and satires - using a work to poke fun or comment on something else. Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.

In Campbell v. Acuff-Rose Music (1994), the Supreme Court recognized parody as a fair use, even when done for profit. Roy Orbison's publisher, Acuff-Rose Music Inc., had sued 2 Live Crew in 1989 for their use of Orbison's "Oh, Pretty Woman" in a mocking rap version with altered lyrics. The Supreme Court viewed 2 Live Crew's version as a ridiculing commentary on the earlier work, and ruled that when the parody was itself the product rather than used for mere advertising, commercial sale did not bar the defense. The Campbell court also distinguished parodies from satire, which they described as a broader social critique not intrinsically tied to ridicule of a specific work, and so not deserving of the same use exceptions as parody because the satirist's ideas are capable of expression without the use of the other particular work.

In a more recent parody case, Suntrust v. Houghton Mifflin, a suit was brought unsuccessfully against the publication of The Wind Done Gone, which reused many of the characters and situations from Gone with the Wind, but told the events from the point of view of the slaves rather than the slaveholders. The Eleventh Circuit, applying Campbell, recognized that The Wind Done Gone was a protected parody, and vacated the district court's injunction against its publication.

A recent court case, Kelly v. Arriba Soft Corporation, provides and develops the relationship between thumbnails, inline linking and fair use. In the lower District Court case on a motion for summary judgment Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly's website in Arriba's image search engine. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation, who argued that it is clearly covered under fair use. On appeal, the 9th District Court of Appeals found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003. The remaining issues were resolved with a default judgement after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement.

Because of the deliberate ambiguity of fair use, it's commonly misunderstood. Here are some of the more common misunderstandings, explaining why they are wrong:

• It's copyrighted, so it can't be fair use. If a work isn't copyrighted it is in the public domain and you can use it anyway. The first requirement for fair use is that the work is copyrighted.
• Acknowledgement of the source makes a use fair. Giving the name of the photographer or author may help but it's not sufficient on its own.

In the U.S., there is also a fair use defense in trademark law based on similar principles as the doctrine under copyright (such as free speech), but with different exceptions. Fair use is consistent with the more limited protection granted to trademarks, generally specific only to the particular product market and geographic area of the trademark owner.

Most trademarks are adopted from words or symbols already common to the culture (such as Apple), instead of being invented by the mark owner (such as Kodak). Courts have recognized that ownership in the mark cannot prevent others from using the word or symbol in these other senses, such as if the trademark is a descriptive word or common symbol such as a pine tree. This means that the less distinctive or original the trademark, the less able the trademark owner will be to control how it is used.

Kodak logo

Trademarks may also be used by a nonowner nominatively—to refer to the actual trademarked product or its source. In addition to protecting product criticism and analysis, U.S. law actually encourages nominative usage by competitors in the form of comparative advertising.

Both of these exceptions require that the mark not be used by the nonowner in a way that would be likely to confuse consumers about the source of their (or the trademark owner's) product. Generally this translates into the requirement, similar to that in fair use under copyright, that no more of the trademark is used than is necessary for the legitimate purpose.

The United States is the only country with a fair use doctrine. However, comparable copyright limitations can be found in many nations' copyright statutes, though these differ in scope. Most other common law countries have a related doctrine known as fair dealing, which is defined in a constrained manner through an enumerated list of causes for exemption that allows little room for judicial interpretation. Civil law countries have codified similarly specific and narrowly drawn exceptions. Fair use, however, tends to be an open-ended legal doctrine, as statutory factors are balanced by U.S. judges on a case-by-case basis rather than strictly applied.

• Berne three-step test
• Copy protection
• Creative Commons
• Cyber law
• List of leading legal cases in copyright law
• Digital rights management
• fair dealing

• Copyright and Fair Use from Stanford University Libraries
• Limitations on exclusive rights: Fair usefrom the US Copyright Office
• Some more key fair use cases
• Checklist for fair use pdf from Purdue University
• "When Copying Is Okay: The 'Fair Use' Rule" from Nolo.com/Law for All
• Lloyd J. Jassin offers some cautious guidance.
• Revised decision the Kelly v. Arriba Soft Corporation case