What’s Fair Use?

Copyright rights are important and powerful, but not absolute. If someone copies a word or a phrase from a book, that’s probably not an infringement. Likewise, they may take more than that but if it’s for a socially beneficial purpose like news reporting or nonprofit education, it still may be allowed without the permission of the copyright owner. The Fair Use doctrine is designed to allow uses of copyrighted works when they benefit society but do not harm the financial interests of the copyright owner too much. Here’s how it works:

As a legal matter, fair use is an “affirmative defense.” That means that once the copyright owner has proven a use that implicates one of their copyright rights, the defendant must actively assert AND prove the use qualifies as a fair use. In determining whether a use is a “fair use,” the law requires courts to consider at least the following four factors:

Factor One – The Purpose and Character of the Use

As a general matter, commercial/profit-generating uses are less likely to be considered fair use, while nonprofit uses like teaching, comment, or criticism are more likely to be considered fair use. Courts will also consider whether the use is “transformative,” meaning that the new use in some way comments upon the work used. While debate may linger as to what “transformative” means, the need to comment upon the work used is guidance recently provided by the Supreme Court.

Factor Two – The Nature of the Copyrighted Work Used

Copyright protects creative expression, so the more creative a work is, the more protection it typically receives. Thus, the use of fictional works, music, paintings, etc. generally weighs against fair use. Works with extensive functional or factual elements, like computer code, scientific papers, and nonfiction works generally receive narrower protection, and use of these works more often favors fair use.

Factor Three – The Amount and Substantiality of the Portion Used

The more of the original work that is used, the more likely it is that this factor weighs against fair use. Note that this is both about the quantity used, as well as the importance of what is used. For instance, copying the “heart of the work,” even if it is perceived as a small amount of the whole work, will weigh against fair use. One myth you should not believe is that there is a fixed percentage of a work that always favors fair use.

Factor Four – Harm to the Current and/or Potential Market for the Work Used

Think about this one this way: if everyone used the original work in the same way, would people still want to purchase/license the original work? Of course, the more harm to the market for the work, the more likely this factor weighs against fair use.

Fair use cases are notoriously hard to predict. It’s not just a matter of adding up the factors and seeing who has more on their side. And the four factors are just the minimum a court must consider – it can also consider other facts it thinks are relevant.

This is why we built the RightsClick Infringement Assessment tool, which includes straightforward questions relevant to fair use. The Assessment Report will give you the info you need to make an informed and intelligent decision about the strength of an infringement claim so you can decide how to proceed.