Lloyd L. Rich is an attorney
practicing publishing and intellectual property law.
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How Much of
Someone Else's Work May I Use
Without Asking Permission?
The Fair
Use Doctrine, Part I
— by Lloyd
Rich
Introduction to Fair Use
There is virtually no question which occurs
more frequently to those in the publishing community than "how
much of someone else's work may I use without asking permission?" The
answer rests in the concept of "fair use" and the fair
use exception in the Copyright Act.
Fair use is a limitation on the exclusive rights
of the copyright owner. The roots of what we today refer to as
fair use are well
established in our early English common law tradition. The "fair
use doctrine" is a complex exception to the "limited
monopoly" vested in authors by the United States Constitution
and Copyright Act. The guiding principle of the fair use doctrine
is to make available, for limited purposes, reasonable public access
to copyrighted works.
Section 107 of the Copyright Act, entitled, "Limitations
on Exclusive Rights: Fair Use," is the statutory codification
of the fair use doctrine. This judicially developed concept strives
to balance the public's need to know and be informed against authors'
incentives to create. The copyright law contemplates that fair
use of a copyrighted work without permission shall be for purposes
such as (1) criticism and comment, (2) parody
and satire, (3) scholarship
and research, (4) news reporting and (5) teaching, and that such
fair use will not result in the infringement of a copyrighted work.
As one may expect, authors and publishers usually take a restrictive
view of the fair use doctrine, while users of copyrighted materials
generally take a more expansive view.
The codification of the fair
use doctrine is not intended to be a rigid, fixed body of law of the fair use privilege. This is because
of the endless variety of situations and combinations of circumstances
that can arise in any particular case which precludes the formulation
of exact rules. For this reason fair use judicial decisions are
very difficult to predict and sometimes even more difficult to
reconcile with previous decisions.
Determining Whether a Particular Use is a Fair Use
Section 107 enumerates four "fair use factors" that
need to be analyzed in order to determine whether a particular
use of a copyrighted work is fair use. These factors are:
(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.
Because the courts consider all four
factors — no single factor is and of itself sufficient
to prove fair use — publishers need
to understand each factor as it relates to determining whether
use of the original copyrighted work in the creation of a new work
will be considered fair use in the eyes of the court.
Purpose and Character of Use
This first fair use factor — purpose and
character of use of the original copyrighted work— evaluates
the new work
by taking into
account the following criteria:
(1) The commercial or noncommercial
nature of the user's use of the copyrighted work.
(2) Does the user's
use of the copyrighted work conform to the fair use purposes contemplated
in Section 107?
(3) The degree of transformation from the purpose
or function of the copyrighted work compared to the purpose or
function of
the new work.
The first criterion — commercial or noncommercial
nature of the new work — ascertains whether the new
work was created primarily
as a commercial venture or was instead created for a noncommercial
or educational purpose. Although every commercial use is not
presumptively an unfair use, and therefore conclusively determinative,
this test indicates that a preference for fair use will be granted
to works that are created for noncommercial or educational
purposes rather than for commercial purposes.
The second criterion looks
to see if the new work is for one of the purposes specifically
contemplated by the fair use provision
— (1) criticism and comment, (2) parody and satire, (3) scholarship
and research, (4) news reporting and (5) teaching. The burden
of proving fair use is somewhat easier to demonstrate if the
new work
is for one of these purposes, however, other uses may also
be determined to be a fair use of the copyrighted work.
The third criterion evaluates
the degree of transformation accomplished by the new work,
e.g., is the transformative purpose of the new
work for comment, criticism, or parody of the copyrighted work.
In other words, this criterion determines whether the new work
merely supplants the original copyrighted work, or whether
it adds something entirely new to the copyrighted work. Important
factors
include whether the new work has a different purpose or different
character than that of the copyrighted work. The crucial factor
is whether the new work alters the copyrighted work
by adding new expression, meaning or message to the copyrighted work.
Nature of Copyrighted Work
This
second fair use factor — nature of the copyrighted
work — acknowledges that some works are simply more
deserving of copyright
protection than others. Consequently, this portion of the fair
use analysis attempts to determine the scope of copyright protection
that should be afforded the copyrighted work.
This factor recognizes
that some works are closer to the core of intended copyright protection
than others, and therefore provides
that fair use is more difficult to establish when these works are
copied. The scope of fair use is greater when an "informational" work — a work of facts or information, a work of scholarship or
of news reporting — as opposed to a more "creative" work — a work of fiction — is
involved or when a work is designed
to inform or educate rather than to entertain.
Another important consideration
is whether the copyrighted work is published or unpublished. The
right of an author to determine
whether and when to publish their work has always been regarded
as one of the most important author's rights. Therefore, courts
have been far less willing to sanction as fair use the unauthorized
taking of an unpublished work than of a published work.
Amount and Substantiality of the Portion Used of the Copyrighted
Work
The third fair use factor looks
at the amount and substantiality of the copying in relation
to the copyrighted
work as a whole.
The critical determination is whether the quality and value of
the materials copied are reasonable in relation to the purpose
of copying. This is not a pure ratio or an absolute quantity of
words test since using a whole work may be fair use under some
circumstances, while using a small fraction of a work may not qualify
for fair use under other circumstances. The sanctioning of the
unauthorized copying of entire works as fair use is an exception
and not the rule. Therefore, anyone who uses all or substantially
all of a work, particularly a literary work, is
asking for trouble,
and will probably be found to have exceeded the bounds of fair
use.
The quantity, as well as the quality and importance, of
the copied material must be considered. One criterion that courts frequently
evaluate is to make certain that the user of the copyrighted material
has taken no more than was necessary to achieve the purpose for
which the user copied the materials.
Effect Upon Potential Market or Value of the Copyrighted Work
The fourth fair use factor — effect
upon the potential market or value of the copyrighted work — considers
the
extent of harm
to the market or potential market for the copyrighted work caused
by the new work. This test evaluates the potential as well as actual
financial harm to the original copyrighted work, as well as to
current and potential derivative works.
The United States Supreme
Court has declared this fair use factor the most important element
of fair use. Therefore, those who wish
to use another's copyrighted materials without permission must
decide whether or not their utilization of the copyrighted material
is going to harm either the present or potential market for the
copyrighted work.
For publishers this means you must be very careful
of appropriating enough of another's copyrighted work for your
own use, in the hope
that your use will be protected by fair use, especially
if the new work becomes a substitute for, or makes the purchase unnecessary
of, the appropriated copyrighted work itself. This use would certainly
not be sanctioned as fair use.
Courts have expressed this standard
by finding that the unauthorized use is not fair use if the unauthorized
use tends to lessen or
negatively impact the potential sale of the original copyrighted
work, interferes with the marketability of the
work, or fulfills
the demand for the original copyrighted work.
This factor does not
make the presumption that all commercial gain is automatically
unfair use, however, if there is commercial
gain from the new work, unless the use is transformative and not
superseding, there will be a high burden to prove that the underlying
work was not financially damaged.
Part II of this article discusses
specific fair use judicial decisions and provide publishers with
examples and guidelines to
help them evaluate whether a particular use of a copyrighted work
will be protected by the fair use doctrine. READ
PART II...
This article is not legal advice.
You should consult an attorney
if you have legal questions that relate to your specific publishing
issues and projects.
© 1996 Lloyd Rich
Reprinted with
permission from the author.
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