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Using Copyrighted Works: A Brief Tutorial: Part Two

Fair Use 

Option No. 3: Fair Use

Fair use, without question, is the most significant and most used copyright exception, particularly for teaching activities in higher education. The Supreme Court has described fair use as a "guarantee of breathing space within the confines of copyright." Golan v. Gonzales, 501 F.3d 1170 (2007). 

In discussing fair use, the Supreme Court stated "The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art."

—Justice Sandra Day O'Connor, Feist Publications Inc. v. Rural Telephone Service Co., 499 US 340, 349(1991)

The purpose of the fair use doctrine is to allow limited use of copyrighted material without requiring prior permission from the copyright holder. The statute lists four factors to be weighed when analyzing the proposed use in order to determine whether it is a fair one. Consideration of all factors is required although all factors do not have to be in favor of a use to make it a fair one.

A fair use analysis is necessarily a fact-driven one. Each unique set of facts regarding a proposed use leads to its own reasoned conclusion. Reasonable individuals may come to different conclusions concerning the same set of facts, but the operative word is "reasonable." If you, as an employee of a nonprofit educational institution, have made a rational and reasonable, fair use determination, you are less likely to be targeted for an infringement lawsuit because of Section 504(c)(2), the "good faith fair use defense".

The four fair use factors are as follows:

1.  The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;

This factor generally weighs in favor of fair use for nonprofit educational uses as opposed to commercial uses. Most uses at the university can probably be characterized as nonprofit educational uses. But educational use alone does not automatically result in a finding of fair use just as a commercial use is not always an infringing one. A nonprofit, educational use would likely result in this factor favoring a finding of fair use, but remember that the other three factors must also be considered.

Additionally, this factor is more likely to weigh in favor of fair use if your use is transformative rather than verbatim copying.  Indeed, recent court decisions have emphasized that when a use is substantially transformative, the other factors are less significant.  The test for a transformative use is "does the use merely supercede the objects of the original creation or instead add something new, with a further purpose of different character, altering the first with new expression, meaning, or message." Blanch v. Koons, 467 F.3d 244 (2d Circ. 2006)

Note: Educational Use Alone is Not Enough to Constitute Fair Use

3.  The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

This is a sliding scale factor -- the larger the amount you use, the less likely it will be a fair use. The copyright statute itself does not give numbers or percentages. This deliberate flexibility in the statute allows each situation to be judged on its specific facts and increases the functionality of fair use particularly in the higher education setting. Included here is a consideration of the quality of the portion used as well as the quantity. Sometimes, even if only a small amount is taken, this factor weighs against fair use if the portion can be justly characterized as 'the heart of the matter.' It is not difficult to see how this factor and the fourth factor, market effect, work in tandem. The more taken in amount and substantiality, the greater the negative impact on the market for the copyrighted work.


4.  The effect of the use upon the potential market for or value of the copyrighted work

If the proposed use became widespread and would negatively impact the market for or value of the copyrighted work, the fourth factor likely weighs against a finding of fair use. Although effect on the market is often cited as the most important of the four, the factors all interrelate and must be evaluated together. The market effect factor is not without its own degree of ambiguity in interpretation. What is the appropriate market to evaluate for effect--the market for the work itself or the permissions market? Courts favoring the latter have been critiqued for using circular reasoning. That is, the purpose of the fair use analysis is to decide whether or not a permission fee is required; just because there is a permissions market should not determine whether a fee is necessary in the first place.

Additional Fair Use Resources and Helps:

UNCC Fair Use Considerations Worksheet

Copyright and Fair Use: Stanford University Libraries

UT Rules of Thumb

 

 

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