Fair Use Definition and Defense

“Fair Use” is the most prevalent defense against copyright infringement and possibly the most misunderstood. It is a subject all in itself.

Simply stated, if a use is “fair use,” it allows you to use someone else’s creation in a particular way without liability for copyright infringement. However, there is no shortage of misconceptions on when fair use applies. Even a long-time copyright lawyer will not always be able to make a definite determination.

The Copyright Act (section 107 of title 17 United States Code) states that: “the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” It prescribes four principal elements that courts analyze in determining whether a fair use defense is valid or not:

“(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(2) the nature of the copyrighted work [including such issues as whether it is published or unpublished and whether it is creative or factual];

(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.”

While these criteria may sound pretty straightforward, application is far from simple except in a truly obvious case. Courts have engaged in much discussion of what these factors mean and how they are to be interpreted. For example, the distinction between commercial and non-profit use is not clear-cut. Commercial use is not always “unfair” and non-profit use not always “fair.” The federal Ninth Circuit Court of Appeals once decided that an educational (classroom) use by one teacher of multiple pages from a cake decorating booklet created by another teacher for her classroom was not fair use. See Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983). The Fifth Circuit Court of Appeals found that copying of articles from scientific journals for scholarly use by Texaco’s scientists also was not fair use, in American Geophysical Union V. Texaco Inc., 60 F.3d 913 (2nd Cir. 1994). In contrast, when 2 Live Crew took Roy Orbison’s famous song, “Pretty Woman,” changing the words and recording it as rap music – an undisputed commercial use – it was fair use as a parody. See Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994).

Unfortunately, some people decide they are engaged in fair use when they do not really know what it is. For example, one composer mistakenly thought it was fair use if you did not use more than four measures of music by someone else. This is why, in most instances, creative people are best off when they stick with what they know best – creation – and leave it to the legal experts to determine if they are on safe ground when they want to make use of someone else’s creation in their own. A copyright attorney can advise whether: (a) you are taking a large or small risk that you will receive a cease and desist letter from the copyright holder; (b) a fair use defense will or will not be viable; (c) you should forget the idea altogether; or (d) you should apply to the content owner for a license. On the other hand, if you think someone has infringed your copyright by using a portion in his or her own material, a copyright lawyer can tell you if you have a case or need to step back and take a deep breath.

For assistance with fair use analysis or other issues of copyright law, contact our Of Counsel attorney, Helena Kobrin.