Fair Use
Understanding the Four Factors
• Purpose: A nonprofit educational purpose can support a claim of fair use. A transformative use can also be highly influential.
• Nature: Uses of factual, nonfiction works are more likely to be within fair use, while fair use applies more narrowly to creative works.
• Amount: The less the amount of a work used, the more likely it is fair use.
• Effect: Uses that do not compete with the market for the copyrighted work are more likely fair use.
DETERMINING WHETHER A use is fair use depends on an application of the four factors in the statute; before making that application, however, a thoughtful definition of each factor is critical. Especially in the years since Congress adopted the first fair use statute in 1976,1 courts have handed down hundreds of decisions that give some meaning to the factors. The statute anticipates that other factors may enter into the decision about fair use.2 In reality, however, courts rarely stray beyond the four factors set forth in the statute: purpose, nature, amount, and effect.
This chapter offers a general overview of the meaning and significance of the factors. Along the way, the focus will be on issues of special importance to educators and librarians. This overview will demonstrate that educational uses may be more favored than commercial uses, and that transformative uses may have even greater influence on the outcome. The overview will also show that less is more, but not always. The less you use of a work, the more likely it will be a fair use, but sometimes using a limited amount still may be an infringement. Nevertheless, sometimes using 100 percent of a work is still a permitted fair use.
Factor One
The Purpose and Character of the Use
The first factor examines whether the use of a copyrighted work “is of a commercial nature or is for nonprofit educational purposes.”3 With that crucial language, Congress signaled that nonprofit, educational uses generally would be favored, while commercial uses would be less favored. Photocopying for classroom handouts is more likely to be fair use than are copies for a professional meeting. Posting artwork on a website in connection with a research study is more likely to be fair use than making the same copies for a commercial art catalog.
Fair use is common in education and librarianship, and is of growing importance. With the expansion of electronic reserves and course management systems such as Blackboard, Moodle, or Sakai, instructors are creating files of readings and easily posting the full text of articles, chapters, and other materials for students enrolled in various courses. For many of these situations, the key copyright question centers on fair use. At least on this first factor, educators should be able to make a strong argument for fair use. If the materials are directly related to the course, if they are posted only at the direction of the instructor, and if passwords and other restrictions limit access only to students enrolled in that one course, then the claim of an educational purpose should be powerful and convincing.
Avoid jumping to conclusions. Your well-intentioned education or research activity may still not be within fair use. You may have an irrefutable argument on the first factor, but it might be outweighed by the application of the remaining three factors. Similarly, commercial needs are certainly not barred from the benefits of fair use.4 Many for-profit entities have argued successfully for fair use. Although the first factor may not weigh in favor of fair use, the remaining three factors could yet tip the balance.
A single factor may also not weigh entirely for or against a finding of fair use. Some situations can create a mixed result on the first factor or any other. For example, when the U.S. Supreme Court considered whether a rap-parody version of a pop song could be fair use, the Court noted that the recording was a commercial product with considerable economic potential, but the use was also criticism or commentary for purposes of fair use.5
Transformative Uses
In addition to considering specific purposes, courts also favor uses that are “transformative.” A transformative use may occur when the work is altered or transformed into something new, such as a parody of a song.6 Transformative uses also occur when the work is used in a new manner or context, distinct from the intended uses of the original. For example, art images in a scholarly study transform the use of the works from aesthetic creations to objects of academic analysis.7
The notion of a transformative use is increasingly important to education and librarianship as diverse works become the subject of study and analysis, and as technologies allow clipping, altering, and reworking of materials for research and teaching. Examples of transformative uses can include quotations incorporated into a paper, or perhaps pieces of a work mixed into a multimedia project for teaching purposes. The deployment of multimedia tools and innovative online courses will give rise to cutting and pasting, adding commentary, and exploring possibilities with images, text, and sound. Many of these uses may well be “transformative.”
Multiple Copies
A teaching purpose gets one more important benefit in the law of fair use. Teaching is explicitly one of the favored purposes stated in the statute.8 The statute also specifically permits “multiple copies for classroom use,” subject to the four factors. According to the Supreme Court, multiple copies may therefore be allowed, even if not transformative.9 But be careful. This language does not mean that all copies for classroom distribution are fair use. You still need to evaluate and balance all factors. You may well conclude that photocopied handouts of a newspaper article are within the law, while also concluding that copies of multiple chapters posted on Blackboard or other system are not fair use.
Factor Two
The Nature of the Copyrighted Work
This factor examines characteristics and qualities of the work being used. The underlying concept is that some types of works are more appropriate for fair use than are others.10 This second factor requires an examination of the qualities and attributes of the copyrighted work, allowing assessment of whether the work is of a type that merits greater protection and less fair use, or is the kind of work that fair use encourages us to build upon in order to expand the growth and dissemination of knowledge.
Courts have had the occasion to draw some lines demonstrating this point. For example, several court decisions have concluded that the unpublished nature of historical correspondence can weigh against fair use.11 The courts have reasoned that copyright owners should have the right to determine the circumstances of first publication and whether, when, and how to make the works publicly available. As a corollary, when courts find that a work has been published, they tend to be more lenient with fair use.
Fiction and Nonfiction
Fair use perhaps applies most generously to published works of nonfiction. Articles, books, and other works of nonfiction—whether about mathematics, sociology, politics, or any other subject—are exactly the types of works for which fair use can have most meaning. Why? Because the central purpose of copyright law, including fair use, is to allow for the growth of knowledge.12 To accomplish that goal, we regularly need to use and build upon earlier works. Most often, the successful growth of knowledge depends on using the nonfiction works of earlier scholarship. Courts have recognized that reality.
By contrast, copyright law gives greater protection for—and allows less fair use of—works of fiction.13 Fair use will be relatively constrained for clips of novels, poetry, and stage plays. You will likely find a similar outcome for uses of other more creative materials, such as art, photography, music, and motion pictures. Indeed, an additional purpose of copyright law is to protect and reward creativity. Limiting fair use for the most creative works advances that objective. This rule does not mean that fair use vaporizes. It simply means that the second factor may be construed against a finding of fair use if the original work is of a creative nature. Depending on the strength of the arguments on the other factors, a use of a highly creative work may still be within the law.
Consumable and Out-of-Print Works
Other examples can help bring practical meaning to the nature factor. For example, this factor may weigh against fair use when applied to copies of workbook pages and excerpts from other “consumable” materials. Publishers often produce and sell workbooks with the expectation that they will be fully consumed and repurchased with each use. Copies can undermine the copyright owner’s expected market by harming the demand for individual and repeated sales.14
A more complicated, but common, circumstance has split legal authorities. Many copyrighted works go out of print, even though the copyright may live on for decades longer. A senate report from 1975, and one early judicial opinion, asserted that if a work is out of print, copying that work may not harm the market.15 After all, the copyright owner of an out of print book is not actively claiming a market and seeking sales.
At least one court has ruled differently about out-of-print materials. In the well-known decision involving Kinko’s and course packs, the court highlighted that owners of out-of-print materials may still offer a license to make copies. The Kinko’s court reasoned that even though a work is out of print, photocopying can still interfere with the marketing of a license to make copies. The court further found that when licensing is the primary market for an out-of-print work, the copies are especially harmful to the licensing market.16
What can you conclude from these examples? You may often need to investigate the realistic and current marketing of the work you want to use. If the work is available for purchase or actively licensed, you might be affecting that market. If the copyright owner has not made reasonable arrangements for licensing, “out of print” may not mean tough luck for fair use. On the other hand, “out of print” may become an obsolete concept. It may be uneconomical to keep a book in stock as a printed volume, but it might be feasible to retain the book indefinitely as a digital download. Many publishers and retailers have migrated to digital books, and Google appears ready and willing to digitize, retain, and deliver any book at any time. These revolutions in publishing are certain to have important consequences for fair use.
Factor Three
The Amount and Substantiality of the Portion Used
On first impression, the “amount” factor perhaps sounds like it should be reasonably straightforward. However, amount is measured both quantitatively and qualitatively, and no exact measure of allowed quantity exists in the law.17 Rules about word counts and percentages have no place in the law of fair use. At best, such measurements are interpretations intended to streamline fair use; at worst, they distract from the flexibility that makes fair use meaningful and adaptable to new situations. Quantity is best evaluated relative to the length of the entire original work and the amount needed to serve a proper “purpose.”
The appropriate amount can also depend on the nature of the work. Courts have measured amount differently for different types of works. When evaluating the fair use of journal articles, for example, a court has ruled that each article is an independent work. Thus, photocopying an article constitutes copying of the entire work.18 Pictures and other visual works pose challenges for determining the appropriate amount. A user nearly always wants the full image, and ordinarily copying all of a work will lean strongly against fair use. Courts have found some flexibility by reasoning that copies of full images that are “thumbnail” size or are of low resolution may still constitute fair use.19 The copying may be quantitatively large but qualitatively limited; low resolution or thumbnail images are unlikely to compete with the full-size originals.
ONE COURT CAUTIONED that even fleeting images of artistic works in a television production might be within fair use, but still not tip the “amount” factor sufficiently to outweigh other factors.
Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).
Quantity and Quality: “The Heart of the Work”
The tension between quantitative and qualitative measures is most vivid with the concept of the “heart of the work.” The Supreme Court in 1985 analyzed whether The Nation magazine had exceeded fair use when it quoted some three hundred words from President Ford’s then-unpublished memoir in a news article. The Court ruled that while the quotations may have been quantitatively small, they were the pieces of the book that a reader would likely find most interesting—President Ford’s account of his decision to pardon President Nixon. Thus, The Nation had impermissibly lifted the “heart” of the manuscript. The quotation was quantitatively small, but the “amount” factor nevertheless weighed strongly against fair use.20
Practical Sense
How do you make reliable and practical sense of the “amount” factor? One simple rule remains in most situations: Shorter excerpts are more likely than longer pieces to be within fair use. Yet sometimes the briefest slice may constitute the “heart of the work” and be outside fair use. Nevertheless, even if you need a relatively large portion of the copyrighted work, you can strengthen the claim of fair use by tying the amount you borrow to your educational or research purpose. If you can meet your favored objectives only by excerpting the article, movie, or other work, the amount may be appropriate. Perhaps the strongest case for fair use in this context would include an unequivocal educational purpose, combined with a clear demonstration of the importance of the work for achieving the educational needs.
SOMETIMES COPYING THE full work can be within fair use. A company copied an entire software program made for a Sony PlayStation in order to reverse engineer it and create an emulator. The court ruled that the “amount” factor weighed only slightly against fair use, because the Sony program never became part of the new emulator.
Sony Computer Entertainment, Inc. v. Connectix Corporation, 203 F.3d 596 (9th Cir.), cert. denied, 531 U.S. 871 (2000).
Factor Four
The Effect of the Use on the Market
The fourth factor, examining market effects, can also raise some subtle issues, and some courts have called it the most important factor.21 The “effect” factor encompasses whether the use harms the market for the work or its value. In many cases, the question is whether the use is one that replaces what should have been a sale of the work or a license to use it. If your use detrimentally affects the copyright owner’s ability to realistically make a sale—regardless of your personal willingness or ability to pay for such a purchase—the court may tip this factor against fair use. Occasional quotations or photocopies may pose little significant market harm, but full reproductions of software and DVDs can make direct inroads on the owner’s potential market for those works.
The easy cases occur when the use directly replaces a potential sale of a work that is marketed at realistic prices. In a case from several years ago that has been widely publicized, a court ruled that downloading free music from the original version of Napster superseded likely sales of CDs. Easy access to free downloads demonstrably harmed the copyright owners’ market.22 In a lawsuit against Kinko’s, a court ruled that when Kinko’s made and sold copies of book chapters, the company eliminated any realistic likelihood that students would ever buy those books.23
More difficult cases involve uses that do not interfere with simple sales, but may undercut licensing of the work. Photocopying of isolated articles might not replace subscriptions to the entire journal, but the copying might interfere with the system of permissions and collection of fees put in place by the publisher or other rightsholders.24 Courts also look to potential harm to derivatives and related markets. A court recently ruled on whether a dictionary book, written to accompany the Harry Potter stories, infringed those copyrights. The court concluded that the dictionary would not harm sales of the original books, but it would harm the ability of J. K. Rowling to authorize another dictionary or other accompanying project.25
Possible market effects can vary greatly. You may be surfing the Internet and find a document, blog, picture, or other copyrighted work properly posted by the rightful owner. The copyright owner clearly has imposed no restrictions or conditions on access and is asserting no claim to payment for use. You may liberally copy, download, or print the materials in full, and you probably have done nothing to harm any realistic market. In another situation, you are creating original instructional materials that you want to post on a course website. You want to include in your document sizable quotations and excerpts of various charts and images from other sources. The effect factor may again support application of fair use, because moving those pieces into a new context and embedding them in the context of an analytical study for educational purposes is not likely to interfere with a realistic market. The more you alter the context of use and surround the works with original criticism or comment, the less likely you are impeding a market that the copyright owner has the right to control.
Market issues are challenging for courts, too. Once again, courts have addressed this factor in close connection to the purpose of the use. If your purpose is research or scholarship, market harm may be difficult to prove, and courts will generally apply the factor somewhat generously. If your purpose is commercial, however, some harm to the market is presumed.26 Still, one can imagine how the rules become blurred when you have an educational purpose, but the copyrighted work is one that is created and marketed especially for the academic community. The hard reality is that even some educational uses have direct and adverse market consequences.
Market issues can get complicated, but in the context of fair use they ultimately drive this line of thinking: How is the work actually marketed? What are the realistic potential markets? Is the work realistically marketed for my needs and my uses? Am I harming or inhibiting that market potential? Am I replacing a sale? Are my market effects significant? Would the market effects be significant if uses like mine were widespread?
Like almost all matters of applying fair use, this fourth factor depends on an array of facts. Those facts may be the circumstances of your use, and they are most certainly about the active or likely marketing of the work you plan to use. You need to have a firm grasp of your situation and investigate the work in question. You might also find that markets change. A work may have no market today, but find a new market tomorrow. A work may be a best seller this year, but be out of print in the near future. Testing the market might also mean retesting it again for later uses.
Notes
1. U.S. Copyright Act of 1976, Public Law 94-553, U.S. Statutes at Large 90 (1976): 2541, codified at 17 U.S.C. § 107.
2. The use of the word include when listing factors of fair use in the statute denotes that the factors listed do not constitute an exclusive list. U.S. Copyright Act, 17 U.S.C. § 107.
3. U.S. Copyright Act, 17 U.S.C. § 107.
4. “A commercial use weighs against a finding of fair use but is not conclusive on the issue.” A & M Records, Inc. v. Napster Inc., 239 F.3d 1004 (9th Cir. 2001).
5. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 593 (1994).
6. Blanch v. Koons, 467 F.3d 244, 253 (2d Cir. 2006). Under this factor courts often ask whether the new work merely replaces the object of the original creation “or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
7. Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006).
8. U.S. Copyright Act, 17 U.S.C. § 107.
9. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, n.11 (1994).
10. This factor calls for recognition that some works are closer to the “core of intended copyright protection” than others, with the consequence that fair use is more difficult to establish when the former works are copied. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994).
11. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985); Peter Letterese & Associates, Inc. v. World Institute of Scientology Enterprises, 533 F.3d 1287, 1313 (11th Cir. 2008); Salinger v. Random House, Inc., 811 F.2d 90, 97 (2d Cir.), cert. denied, 484 U.S. 890 (1987).
12. U.S. Constitution, art. I, sec. 8, cl. 8.
13. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994).
14. Copyright Law Revision, 94th Cong., 2d sess., 1976. H. Doc. 1476.
15. Copyright Law Revision, 94th Cong., 1st sess., 1975. S. Doc. 473; Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir. 1986), cert. denied, 481 U.S. 1059 (1987).
16. Basic Books, Inc. v. Kinko’s Graphics Corporation, 758 F.Supp. 1522 (S.D.N.Y. 1991).
17. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 587 (1994); Elvis Presley Enterprises, Inc. v. Passport Video, 349 F.3d 622, 630 (9th Cir. 2003).
18. American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994), cert. dismissed, 516 U.S. 1005 (1995).
19. Kelly v. Arriba Soft Corporation, 336 F.3d 811 (9th Cir. 2003).
20. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 564–566 (1985).
21. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566 (1985).
22. A & M Records, Inc. v. Napster Inc., 239 F.3d 1004 (9th Cir. 2001).
23. Basic Books, Inc. v. Kinko’s Graphics Corporation, 758 F.Supp. 1522 (S.D.N.Y. 1991).
24. American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994), cert. dismissed, 516 U.S. 1005 (1995).
25. After evaluating all factors, the court ruled that the Harry Potter dictionary was not a fair use. Warner Brothers Entertainment Inc. v. RDR Books, 575 F.Supp.2d 513 (S.D.N.Y. 2008).
26. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).