fair use - a fairy use tale

Today’s blog post is in direct response to questions I regularly field at conventions and workshops. This question continually hits home the fact that most creatives really have no clear idea what “Fair Use” actually is, and how it works.

BACKGROUND - The Copyright Act gives copyright holders an exclusive right to reproduce works for a limited time period. Fair use is a limitation on this right. Fair use allows someone other than the copyright holder to copy some or all of a work – even if the copyright holder has not given (or refuses to give) permission.

WHY ALLOW FAIR USE? - Copyright law gives copyright holders certain exclusive rights, for a limited time, as an incentive to create works for the enrichment of society as a whole. In exchange for what is essentially a limited monopoly, the law expects that intellectual property creators will enrich society by contributing to the growth of science, education and the arts. However, copyright law does not give copyright holders total control of their works. Copyrighted works transition to the public domain and become available for use by the public when the copyright term expires. But even before those works enter the public domain, the public is free to make ‘fair uses’ of copyrighted works.

I should note here that there is a deep ideological divide between creatives and the corporate entities that own most copyrighted works. This … disagreement … is related to the extreme lengths of copyright terms. For example, any work created after 2002 expires 70 years after the death of author. If the work is of corporate authorship, the term expires 95 years from publication or 120 years from creation, whichever expires first. Needless to say, there are a whole host of arguments against these terms – not the least of which is the fact that such lengthy terms appear, on their face, to contravene the law’s intent as an incentive to contribute to society as a whole. I can see how some might consider a 100-year monopoly “excessive” and only contributory to the enrichment of the copyright holder.

All that said, by carving out a space for creative uses of music, literature, movies, etc… during the period that a work is protected by copyright, fair use is intended to help reduce (if not relieve) these tensions between copyright law and the First Amendment's guarantee of freedom of expression. The Supreme Court’s description of fair use is "the guarantee of breathing space for new expression within the confines of Copyright law."

HOW DOES A COURT DECIDE IF A USE IS “FAIR”? - Whether a use is fair always depends on the specific facts of the use. Fair use is decided by courts on a case-by-case basis after considering four factors. These factors are found in Section 107 of the Copyright Act. I’ve broken them down (with examples) below. Note that some of these examples are applicable to more than one factor.

1. PURPOSE AND CHARACTER of the use of the copyrighted work. This is divided into two subcategories - "transformative quality", and "commerciality".

1 (a) - TRANSFORMATIVE QUALITY - Is the new work the same as the copyrighted work, or have you transformed the original work, using it in a new and different way? In my experience, this is where most creatives run afoul of the courts, which, in general, take a much more conservative view than artists.

Example 1 - A Google search engine turned the photos on a subscription-only website into thumbnail images for its search results. In this case, the court ruled that Google's use of thumbnail photos was "highly transformative," since the search engine changed the image's original purpose of entertainment and aesthetics into providing Google's users with links to images.

Example 2 - American artist Jeff Koons used a portion of a designer photo advertisement (a model's legs in Gucci sandals) amongst a collection of iconic images in his painting, "Niagara." In that case, the court held that the painting's use of the copyrighted images was a transformative fair use, in part because it commented on fashion and consumer culture.

1 (b) - COMMERCIAL OR NONCOMMERCIAL - Will you make money from the new work, or is it intended for nonprofit, educational, or personal purposes? Commercial uses can still be fair uses, but courts are more likely to find fair use where the use is for noncommercial purposes.

Example 1 - A biographer of author Richard Wright quoted from six of Wright's unpublished letters and ten unpublished journal entries. The court found that the biographer's use was fair, in part because the biographer's purpose was to educate and inform the public, and his use constituted less than 1% of Wright's unpublished letters.

Example 2 - A major electronics manufacturer developed a video tape recording device that allowed the consumer to "time-shift"—record a complete TV program in real-time and hold the show for a later viewing. Several major film studios filed a copyright infringement suit against the electronics manufacturer claiming the device could be used for copyright infringement. In 1984's Sony v. Universal Studios (the “Betamax case”), the Supreme Court held that time-shifting with a VCR qualified as fair use. The courts noted that the private, non-commercial home taping of free television programs for later viewing was not infringing and did not hurt the market value of the copyrighted material.

2. NATURE OF THE WORK - A particular use is more likely to be considered fair when the copied work is factual rather than creative.

Example - A book publisher used several stills from the famous 1963 Zapruder footage of President Kennedy's assassination for the historical book Six Seconds in Dallas. Time Inc., the owner of the footage, sued the book publisher for copyright infringement. In that case, the court ruled that the publisher's use of the stills was "fair and reasonable," in part because the use was based on a factual and historical news event.

3. AMOUNT AND SUBSTANTIALITY of the portion used in relation to the copyrighted work as a whole? How much of the copyrighted work did you use in the new work? Copying nearly all of the original work, or copying its "heart," will count against fair use. But how-much-is-too-much will generally depend on the purpose for which the work is intended. For example, parodies may need to make extensive use of an original work to get the point across.

Example - The Washington Post newspaper used several brief quotations from Church of Scientology texts that were posted on the Internet. The court found the use to be fair, in part because the newspaper excerpted only a small portion of the work and the purpose was for news commentary.

4. EFFECT OF THE USE ON THE POTENTIAL MARKET OR VALUE of the copyrighted work. This factor applies even if the original is given away for free. If you use the copied work in a way that takes market share away from the copyright holder, that will weigh against fair use. Uses of copyrighted material that serve a different market, audience or purpose are more likely to be considered fair.

Example - An episode of "Family Guy" made fun of comedian Carol Burnett's image and signature characters from her 1960's comedy variety show. In that case, the court ruled that the show's use was fair, in part because the "Family Guy" episode was designed to parody Burnett as a public figure, using a relatively small percentage of copyrighted material, and would not substitute for the original in any market.


These factors are guidelines, and they are not exclusive. Generally, courts are most interested in whether or not the individual making use of a work has acted in good faith. Have they sought the permission of the holder? Are they actual artists or scientists acting for “the good of humanity” – or are they businesses, looking to “cash in” on someone else’s intellectual property?

Finally, if you are still confused about fair use, and how it relates to you as a creative, I submit to you a wonderful video, created by Professor Eric Faden of Bucknell University. His video serves the triple purpose of 1) inspiring the title of this post, 2) entertaining and educating at the same time, and 3) causing Disney’s lawyers an apoplectic fit.

Second blog post 



Third blog post