Fair use is a type of affirmative defense in copyright law. Regulated under 17 USC §107, the congress list four factors in deciding if a use of the original work is a fair use. The four factors are: 1) the character and purpose of the use; 2) the nature of the original work; 3) the amount taken from the original work; and 4) the market effect to the original work. Court will weigh the four factors before making a decision. Because none of the factor is determinative, court will balance each factor. If the court found fair use, the defendant would be not liable for the infringement.
In deciding the character and purpose of the use, the court asks if the use is for commercial or nonprofit purpose. A use for nonprofit purpose is more likely be fair. As for purpose, the court asks if “the new work merely ‘supersedes the objects’ 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 (1994). ) If a use is transformative, it more likely would be a fair use. Transformative work can be a parody or satire, but there are other types of transformative work as well.
The second factor asks about the nature of the original work. If the original work is a factual instead of fictional work, it favors fair use. If the original work is unpublished, it also favors fair use. In Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), the court placed great weight in the fact that the original work at matter was a unpublished work.
The third factor is the amount taken from the original work. The amount can be counted in quantity or in quality. For example, in Harper & Row, the defendant only took 300 words from a biography of President Ford, but because that’s the most attractive portion of the biography, the court found the taken of the “substantial” amount disfavors fair use.
The law factor is the market effect to the original work because of the use. Usually, when the use usurps the market or potential market of the original work, the use would unlikely to be fair.
The type of fair use has developed from the conventional use, like copying the article (American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994) ), to contextual use, like cutting pictures from the original photograph and collage into a new artwork (Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)), or even using the original work and use through a different technology (Authors Guild v. Google, Inc., 804 F.3d 202 (2015)).
[Last updated in November of 2020 by the Wex Definitions Team]