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 fair use.
The Statutory Decree
§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 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Factor 1 - Purpose and Character of Use
This first factor looks at the new work takes into account the following three sub-factors.
- Commercial nature or non-profit educational purposes.
- Preamble Purposes
- News reporting
- 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 - Relative Amount
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.