Fair Use


steal like an artist

Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. Examples of fair use include commentary, search engines, criticism, news reporting, research, teaching, library archiving, and scholarship.

It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test (Purpose and character; Nature of the copied work; Amount and substantiality; and Effect upon work’s value). Along with Public Domain, Fair use is one of the ‘Traditional Safety Valves’ (techniques that balance the public’s interest in open access with the property interest of copyright owners)

The four factors of analysis for fair use derive from the opinion of Joseph Story in ‘Folsom v. Marsh,’ in which the defendant had copied 353 pages from the plaintiff’s 12-volume biography of George Washington in order to produce a separate two-volume work of his own. The court rejected the defendant’s fair use defense with the following explanation: ‘[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy…’ ‘In short, we must often… look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.’

The first factor is regarding whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only ‘supersede the objects’ of the original for reasons of personal profit. To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.

When Tom Forsythe appropriated Barbie dolls for his photography project ‘Food Chain Barbie,’ Mattel lost its claims of copyright and trademark infringement against him because his work effectively parodies Barbie and the values she represents. When Jeff Koons tried to justify his appropriation of Art Rogers’ photograph ‘Puppies’ in his sculpture ‘String of Puppies’ with the same parody defense, he lost because his work was not presented as a parody of Rogers’ photograph in particular, but of society at large, which was deemed insufficiently justificatory.

However, since this case, courts have begun to emphasize the first fair use factor—assessing whether the alleged infringement has transformative use as described by the Hon. Judge Pierre N. Leval. More recently, Koons was involved in a similar case with commercial photographer Andrea Blanch, regarding his use of her photograph for a painting, whereby he appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. In this case, Koons won; the case sets a favorable precedent for appropriation art where the use is deemed transformative.

‘Whether such use is of a commercial nature or is for nonprofit educational purposes,’ has recently been de-emphasized in some Circuits ‘since many, if not most, secondary uses seek at least some measure of commercial gain from their use.’ More important is whether the use fulfills any of the ‘preamble purposes,’ as these have been interpreted as paradigmatically ‘transformative.’ Although Judge Pierre Leval has distinguished the first factor as ‘the soul of fair use,’ it alone is not determinative. For example, not every educational usage is fair.

Although the Supreme Court of the United States has ruled that the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional. To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright—only their particular expression or fixation merits such protection. On the other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The Zapruder film of the assassination of President Kennedy, for example, was purchased and copyrighted by ‘Time’ magazine. Yet their copyright was not upheld, in the name of the public interest, when they tried to enjoin the reproduction of stills from the film in a history book on the subject.

Following the decisions of the ‘Second Circuit in Salinger v. Random House’ and in ‘New Era Publications Int’l v. Henry Holt & Co,’ the aspect of whether the copied work has been previously published suddenly trumped all other considerations because of, in the words of one commentator, ‘the original author’s interest in controlling the circumstances of the first public revelation of his work, and his right, if he so chooses, not to publish at all.’ However, the influential U.S. federal judge Pierre N. Leval views this importation of certain aspects of France’s ‘droit moral d’artiste’ (‘moral rights of the artist’) into American copyright law as ‘bizarre and contradictory’ because it sometimes grants greater protection to works that were created for private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially conceived to protect. This is not to claim that unpublished works, or, more specifically, works not intended for publication, do not deserve legal protection, but that any such protection should come from laws about privacy, rather than laws about copyright. The statutory fair use provision was amended in response to these concerns by adding a final sentence: ‘The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.’

The third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work. In general, the less that is used in relation to the whole, ex: a few sentences of a text for a book review, the more likely that the sample will be considered fair use. Yet see ‘Sony Corp. of America v. Universal City Studios, Inc.’ for a case in which substantial copying—entire programs for private viewing—was upheld as fair use, at least when the copying is done for the purposes of time-shifting. Likewise, see ‘Kelly v. Arriba Soft Corporation,’ where the Ninth Circuit held that copying an entire photo to use as a thumbnail in online search results did not weigh against fair use, ‘if the secondary user only copies as much as is necessary for his or her intended use.’ Conversely, in ‘Harper & Row Publishers Inc v. Nation Enters,’ the use of fewer than 400 words from President Ford’s memoir by a political opinion magazine was interpreted as infringement because those few words represented ‘the heart of the book’ and were, as such, substantial.

Before 1991, sampling in certain genres of music was accepted practice and such copyright considerations as these were viewed as largely irrelevant. The strict decision against rapper Biz Markie’s appropriation of a Gilbert O’Sullivan song in the case ‘Grand Upright Music, Ltd. v. Warner Bros. Records Inc.’ changed practices and opinions overnight. Samples now had to be licensed, as long as they rose ‘to a level of legally cognizable appropriation.’ In other words, de minimis sampling was still considered fair and free because, traditionally, ‘the law does not care about trifles.’ The recent Sixth Circuit Court decision in the appeal to ‘Bridgeport Music, Inc. v. Dimension Films’ has reversed this standing, eliminating the de minimis defense for samples of recorded music, but stating that the decision did not apply to fair use.

The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner’s ability to exploit his or her original work. The court not only investigates whether the defendant’s specific use of the work has significantly harmed the copyright owner’s market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests not on the defendant for commercial uses, but on the copyright owner for noncommercial uses. See ‘Sony Corp v. Universal City Studios,’ where the copyright owner, Universal, failed to provide any empirical evidence that the use of Betamax had either reduced their viewership or negatively impacted their business. In the aforementioned Nation case regarding President Ford’s memoirs, the Supreme Court labeled this factor ‘the single most important element of fair use’ and it has indeed enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court’s more recent announcement in ‘Campbell v. Acuff-Rose Music Inc’ that ‘all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright’ has helped modulate this emphasis in interpretation.

In evaluating the fourth factor, courts often consider two kinds of harm to the potential market of the original work: First, courts consider whether the use in question acts as a direct market substitute for the original work. In the judgement of the Supreme Court in Acuff-Rose Music they decisively stated that, ‘when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur.’ In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner’s official trailers. Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licencing market. This consideration has weighed against commercial copy shops that make copies of articles in course-pack for college students, when a market already existed for the licensing of course-pack copies. Courts recognize that certain kinds of market harm do not oppose fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism.

Courts, when deciding fair use cases, in addition to looking at context, amount, and value of the use, also look to the standards and practices of the professional communities where the case comes from. Among the communities are documentarians, librarians, makers of Open Courseware, visual art educators, and communications professors. Such codes of best practices have permitted communities of practice to make more informed risk assessments in employing fair use in their daily practice. For instance, documentarians must obtain errors and omissions insurance before most broadcasters and cablecasters will accept it. Before they created a code of best practices in 2005, no errors and omissions insurance routinely accepted fair use claims. Now, all such insurers in the U.S. accept fair use claims within the terms of their code.

The practical effect of this law and the court decisions following it is that it is usually possible to quote from a copyrighted work in order to criticize or comment upon it, teach students about it, and possibly for other uses. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author’s style will probably fall under fair use even though he may sell his review commercially; but a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

Free Republic, LLC, owner of the political website freerepublic.com, was found liable for copyright infringement in ‘L.A. Times v. Free Republic’ for reproducing and archiving full-text versions of plaintiffs’ news articles even though the judge found the website minimally commercial. She held that ‘while defendants’ do not necessarily ‘exploit’ the articles for commercial gain, their posting to the Free Republic site allows defendants and other visitors to avoid paying the ‘customary price’ charged for the works.’ The 2000 opinion ruled concerning the four factors of fair use that 1) defendants’ use of plaintiffs’ articles is minimally, if at all, transformative, 2) the factual content of the articles copied ‘weighs in favor of finding of fair use of the news articles by defendants in this case,’ though it didn’t ‘provide strong support’ 3) concerning the amount and substantiality prong, ‘the wholesale copying of plaintiffs’ articles weighs against the finding of fair use,’ and 4) the plaintiffs showed that they were trying to exploit the market for viewing their articles online and defendants did not rebut their showing by proving an absence of usurpation harm to plaintiffs. Ultimately the court found ‘that the defendants may not assert a fair use defense to plaintiffs’ copyright infringement claim.’

The Supreme Court of the United States described fair use as an affirmative defense in ‘Campbell v. Acuff-Rose Music, Inc.’ This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that the use was fair and not an infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a ‘prima facie’ case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant’s work borrowed only a small amount, for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense.

 Since the defendant has the burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense. This type of lawsuit is part of a much larger problem in First Amendment law. Since paying a royalty fee may be much less expensive than having a potential copyright suit threaten the publication of a completed work in which a publisher has invested significant resources, many authors may seek a license even for uses that copyright law ostensibly permits without liability. The frequent argument over whether fair use is a ‘right’ or a ‘defense’ is generated by confusion over the use of the term ‘affirmative defense,’ which is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between ‘rights’ and ‘defenses,’ and so it does not characterize the substance of the defendant’s actions as ‘not a right but a defense.’

In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in the 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation (EFF), the American Civil Liberties Union, the National Coalition Against Censorship, the American Library Association, numerous clinical programs at law schools, and others. The ‘Chilling Effects’ archive was established in 2002 as a coalition of several law school clinics and the EFF to document the use of cease and desist letters. Most recently, in 2006, Stanford University began an initiative called ‘The Fair Use Project’ (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations.

A balanced copyright law provides an economic benefit to many high-tech businesses such as search engines and software developers. Fair Use is also crucial to non-technology industries such as insurance, legal services, and newspaper publishers. In 2007, the Computer and Communications Industry Association (CCIA), a group representing companies including Google Inc., Microsoft Inc., Oracle Corporation, Sun Microsystems, Yahoo! and other high-tech companies, released a study that found that Fair Use exceptions to US copyright laws were responsible for more than $4,500 billion dollars in annual revenue for the United States economy representing one-sixth of the total US GDP. The study found that fair use dependent industries are directly responsible for more than eighteen percent of US economic growth and nearly eleven million American jobs. ‘As the United States economy becomes increasingly knowledge-based, the concept of fair use can no longer be discussed and legislated in the abstract. It is the very foundation of the digital age and a cornerstone of our economy,’ said Ed Black, President and CEO of CCIA. ‘Much of the unprecedented economic growth of the past ten years can actually be credited to the doctrine of fair use, as the Internet itself depends on the ability to use content in a limited and unlicenced manner.’

Producers or creators of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. These fair use cases distinguish between parodies (using a work in order to poke fun at or comment on the work itself) and satires (using a work to poke fun at or comment on something else). Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.

In ‘Campbell v. Acuff-Rose Music Inc’ the Supreme Court recognized parody as a potential fair use, even when done for profit. Roy Orbison’s publisher, Acuff-Rose Music Inc, had sued 2 Live Crew in 1989 for their use of Orbison’s ‘Oh, Pretty Woman’ in a mocking rap version with altered lyrics. The Supreme Court viewed 2 Live Crew’s version as a ridiculing commentary on the earlier work, and ruled that when the parody was itself the product rather than used for mere advertising, commercial sale did not bar the defense. The Campbell court also distinguished parodies from satire, which they described as a broader social critique not intrinsically tied to ridicule of a specific work, and so not deserving of the same use exceptions as parody because the satirist’s ideas are capable of expression without the use of the other particular work.

A number of appellate decisions have recognized that a parody may be a protected fair use, including both the Second  and Ninth Circuits. Most recently, in ‘Suntrust v. Houghton Mifflin,’ a suit was brought unsuccessfully against the publication of ‘The Wind Done Gone,’ which reused many of the characters and situations from ‘Gone with the Wind,’ but told the events from the point of view of the slaves rather than the slaveholders. The Eleventh Circuit, applying Campbell, recognized that ‘The Wind Done Gone’ was fair use, and vacated the district court’s injunction against its publication.

A US court case in 2003, ‘Kelly v. Arriba Soft Corporation,’ provides and develops the relationship between thumbnails, inline linking and fair use. In the lower District Court case on a motion for summary judgment, Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly’s website in Arriba’s image search engine. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation, who argued that it is clearly covered under fair use.

On appeal, the 9th Circuit Court of Appeals found in favor of the defendant. In reaching its decision, the court utilized the four-factor analysis. Firstly, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution like the original artwork was. Secondly, the fact that the photographs had already been published diminished the significance of their nature as creative works. Thirdly, although normally making a ‘full’ replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails. To the contrary, the thumbnail searches could increase exposure of the originals. In looking at all these factors as a whole, the court found that the thumbnails were fair use and remanded the case to the lower court. The remaining issues were resolved with a default judgment after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement.

In 2008 US District Judge Jeremy Fogel of San Jose, California ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected ‘fair use’ of the copyrighted material. The case involved Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania, who made a home video of her thirteen-month-old son dancing to Prince’s song ‘Let’s Go Crazy’ and posted the video on YouTube. Four months later, Universal Music, the owner of the copyright to the song, ordered YouTube to remove the video enforcing the Digital Millennium Copyright Act. Lenz notified YouTube immediately that her video was within the scope of fair use, and demanded that it be restored. YouTube complied after six weeks, not two weeks as required by the Digital Millennium Copyright Act. Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair-use of the song.


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