Fair Use
- Fair use is subjective, and is often influenced by a judge or jury’s personal morals. The Supreme Court has ruled that offensiveness is not a factor in fair use, but a morally offended judge or jury could use the offensiveness of the work as a rationalization for its decision against fair use.
- Acknowledging the source material does not always mean it is ok to use another author’s original work. While acknowledgement of the source material through a citation may be considered when determining fair use, it will not protect against a claim of infringement.
- When in doubt, seek the permission of the copyright owner before using their original work.
Factor One –– The Purpose and Characterization of the Work (The Transformative Factor)
- Non-profit or educational uses that transform the original material are more likely to be considered fair. Transformative uses could even be considered fair if they are commercial. For example, a parody is considered fair use so long as is does not dilute the commercial value of the original, and only uses as much as the original material as needed, and not so much that the consumer will be confused.
- The following questions can help determine if the Transformative Factor applies:
- Has the original material been transformed by adding new expression or meaning?
- Was value added to the original by creating new information, new aesthetics, new insights, and new understandings?
Factor Two –– The Nature of the Copyrighted Work
- Creative works are generally given more protection than factual works, because factual works have a limited degree of transformation.
- If a work is unpublished, the author’s right of first publication is recognized. Fair use of unpublished works is more stringent, because the author has the right to control the first public appearance of their work.
Factor Three –– Amount and Substantiality of the Portion Used
- The less of the original work used, the more likely you are to fall under fair use. However, you are more likely to not fall under fair use if you copy the most memorable aspect of a work. For example, it would probably not be fair use to copy the opening fanfare from John Williams’s Olympic Theme.
- Parody that falls under the transformative factor is given a different fair use analysis. A parody is permitted to borrow even the heart of the original work, because, “it is the heart at which parody takes aim.” (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).)
Factor Four –– The Effect of the Use Upon the Potential Market
- Does your use deprive the copyright owner of income, or undermine a potential market for the copyrighted work? If either is true, it does not fall under fair use.
- Even if you are not competing directly with the original work, you cannot claim fair use if there is a market for your work that is based on someone else’s work.
- Parody is again analyzed differently in this context. If a parody causes loss of income to the original author, it is different from the appropriation of the work. “The economic effect of a parody with which we are concerned is not its potential to destroy or diminish the market for the original…but whether it fulfills the demand for the original.” (Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).)
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