Although the Fair Use provision is in the Copyright Act, prior to the 1990s it
was seldom invoked outside of academic circles. Until the 2 Live Crew
case, Fair Use seemed only to concern itself with making copies for the
classroom and using portions of works in academics treatises. The Fair
Use provision and the four factors to be considered in a fair use analysis were
dramatically fleshed out in the 2 Live Crew case. Here, we look at the
fair use provision and the four factors to be used in making a determination of
§107. Limitations on exclusive rights: Fair Use
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 -
the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted
The fact that a work is unpublished shall not itself bar a finding of fair use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.
Factor 1 -
Purpose and Character of Use
This first factor looks at the new work takes into account the following three
Commercial nature or non-profit educational purposes.
Degree of Transformation
The first sub-factor (1) simply looks at the new work and determines whether
it was created primarily as a for profit venture or was created for a
non-profit educational purpose. While not at all determinative, this test
indicates that preference will be granted to works that were created for
non-profit educational purposes (like this Web page!).
The second sub-factor (2) looks to see if the new work is for one of the
purposes that are mentioned in the preamble of the fair use provision. It
should be noted that this list is not restrictive. However, the burden of
showing fair use is somewhat easier if the work is for one of these purposes.
The third sub-factor (3) looks at the degree of transformation accomplished by
the new work. In other words, this sub-factor seeks to determine whether the
new work merely supplants the original, or whether it adds something new, with
a further purpose or different character, thereby altering the first with new
expression, meaning or message.
Factor 2 -
Nature of Copyrighted Work
This second factor acknowledges that fact that some works are simply more
deserving of copyright protection than others. Consequently, this portion of
the test looks at the original work and attempts to determine where that work
is in the spectrum of worthiness of copyright protection.
Factor 3 -
The third factor looks at the amount and substantiality of the copying in
relation to the work as a whole. Under this factor, three sub-factors are generally considered:
Amount Taken, Quality of Utilized Work, Ratio of Amount Taken to Utilizing Work.
The critical determination is whether
the quality and value of the materials used are reasonable in relation to the
purpose of copying. This is not a pure ratio test in that using a whole work
may be fair use in some circumstances, whereas using a tiny fraction of a work may
not qualify for fair use in other circumstances.
Therefore, the quantity, as well as the quality and importance, of the copied
material must be considered. Some Justices have looked to see that "no
more was taken than was necessary" to achieve the purpose for which
the materials were copied.
Factor 4 -
Effect upon Potential Market
The fourth factor considers the extent of harm to the market or potential
market of the original work caused by the infringement. This test takes into
account harm to the original, as well as harm to derivative works.