Fair use is frequently determined during copyright infringement litigation. A copyright holder (the plaintiff) will accuse someone of infringing on their work (the defendant). The defendant accused of infringement can now argue that the infringement was justified under the fair use doctrine. This doctrine is based on 17 U.S. Code 107, which is part of the copyright act 1976.
When faced with this argument, a court considers four factors, which are discussed below. The court may find that the defendant’s illegal use of the plaintiff’s copyrighted work is permissible if the weight of the factors is in favor of the defendant (who is using the plaintiff’s copyrighted work without permission). In this case, the defendant may continue to use the work without having to pay the plaintiff any money damages.
When determining whether a given usage is covered by the fair use doctrine, four factors must be considered:
- The purpose and character of the use;
- The nature of the work being used;
- The amount and substantiality of the part that is used in relation to the copyrighted work as a whole; and
- The effect of the use on the potential market for the original work of authorship.
It’s never a good idea to rely on the fair use defense. These considerations have been construed differently by courts, and there are subjective judgments involved. As a result, even though this field is widely litigated and the case law is well established, it can be impossible to foresee how a judge will rule when a defendant pleads fair use as a defense in a copyright infringement suit. In general, the doctrine of fair use gives more latitude to parodies that replicate original material in order to criticize, attack, or mock it than to any appropriation that is interpreted alongside the original work.
Nature and Purpose of the Use
The type and aim of the use, which is the first factor to evaluate, has long been seen as the major predictor of whether a specific use is protected. If you wish to use copyrighted content but are unsure about the first factor, evaluate whether the material you’ve taken was taken for a commercial or nonprofit educational purpose.
In general, if you have taken for a primarily charitable educational purpose, this aspect favors you. This element, for example, works to your advantage if you made photocopies of a short narrative to educate students on how to write. This element, on the other hand, will work against you if you have manufactured reproductions of another artist’s painting and attached them to key chains to sell at a street fair.
You should also consider whether you have transformed the work by adding expression, aesthetics, insights, and meaning that were not present in the original. The Supreme Court, for example, has tended to favor parodists who alter original works in order to ridicule and mock their meaning. However, if a defendant has constructed an “encyclopedia” to accompany an author’s original series of fantasy works, this change is insufficient to warrant verbatim copying. For this factor to operate to a defendant’s advantage, the copying must be transformative.
Nature of the Original Work Being Used
In general, if an original work of authorship is factual or informative, it is easier to replicate than if it is imaginative or expressive. This is due in part to the fact that the sharing of information is regarded to be in the public interest. If you’re copying, and if you’re copying from a published work rather than an unpublished one, you’ll have a larger chance of this element working in your favor.
The Amount and Substantiality of What Is Taken
The more of an original work you take, the less likely you are to be judged fair in your use of the content. Your contribution will be taken into account as well. This factor is less likely to be in your favor if you take the most memorable or important aspect of the work. For example, if you use the guitar intro from David Bowie’s “Under Pressure” in a rap song that isn’t about David Bowie’s “Under Pressure,” this factor will almost certainly work against you. If you’re doing a parody or critique of David Bowie’s “Under Pressure,” though, you’ll probably be allowed to take more because the audience won’t perceive the parody as a critique of the original work unless you conjure up the original piece.
The Effect of the Use Upon the Potential Market
The third element of fair use is equally crucial. This element is likely to be determined against you if your work deprives a copyright holder of income or decreases an existing or potential market for original work. Even if you have created a work that the original author would never have developed by copying, if your work has a negative impact on a prospective market, the courts will rule against you.
A parody that derives from an original work of authorship in order to attack or mock it is treated differently, much like the other aspects. The question is whether the parody meets the demand for the original or just deprives the original author of cash by successfully criticizing his or her work and making it difficult for an audience to take the original work seriously again. When 2 Live Crew composed a rap parody of Roy Orbison’s “Pretty Woman,” for example, the Supreme Court determined that a potential “derivative” rap market for Orbison’s version was not affected by a parody mocking Orbison’s version.