Exactly what is ‘Fair Use’?

As you probably know, it is generally an infringement to use another’s copyrighted work without authorization.  However, one common defense to infringement actions is “fair use.”  But how can you determine whether something is used in “fair use”?  

The courts follow a four-step balancing test, which can be quite complex and examines both the original and the copied works in much detail.    Only after examining and weighing all four factors will the courts decide whether an item was used in “fair use.”

The first factor is the “purpose and character of the use.”  For instance, non-profit educational purposes will weigh more in favor of fair use than for-profit uses.  Uses exploiting an original work for commercial gain tend to weigh in the other direction.  This factor also considers the transformative nature of the new work.  For instance, a “parody” (assuming it’s a true parody) will weigh in factor of fair use in this factor.

The second factor is the “nature of the copyrighted work.”   The more informational and functional the original work, the broader the scope of the fair use defense.  For original creative expressions such as many songs and paintings, this factor generally weighs against fair use.

The third factor is the “amount and substantiality of the portion used.”  The courts will ask, was any more of the original work taken than necessary?  The less copied, the more favor of fair use.  Where a work is copied in its entirety, this factor usually weighs against fair use.

The fourth factor is the “effect of the use upon the potential market.”  Does the new work create an adverse effect on the potential market for the copied original?  Does a re-posting of an article usurp the right of the original author from charging a fee to access the article?  If so, this factor may weigh against fair use.

Thus, there is often no quick and easy way to determine if something is “fair use” without looking at all four factors, and many court opinions have gone into great detail about these factors.  

Many times, the analysis is close and could almost go either way.  For instance, two different cases which both involved different unauthorized usages of the same material — a video of the Reginald Denny beating during the 1993 L.A. riots — had different outcomes.  In one case, the court decided that it was not “fair use” where news agent Reuters simply rebroadcast the video.   Los Angeles News Service v. Reuters Television Int’l Ltd., 149 F.3d 987 (9th Cir. 1988).  However, where Court TV had included a clip of the video into a video montage introducing its Prime Time Justice program, the court found that the usage was “fair use” because it was creative and had a use beyond mere news reporting, even though it was commercial and profit-based.  Los Angeles News Service v. CBS Broadcasting Inc., 305 F.3d 924 (9th Cir. 2002).

If you have copied, or intend to copy, someone else’s protected work in some way, to make a true assessment as to whether your use was done in “fair use,” you may want to consider speaking to an attorney who is knowledgable about and can research copyright case law and can give you an educated assessment.