By Richard Stim , Attorney University of San Francisco School of Law
Updated by Glen Secor , Attorney Suffolk University Law School
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As you can see, these are not yes/no questions, so it's up to the courts to determine whether each factor supports or goes against a finding of fair use. Even then, there's no equation or formula for determining whether a use is fair use. The courts consider each factor and then decide whether, on balance, they point in favor of or against fair use.
Here's an analysis of the four fair use factors:
The first fair use factor refers to the way the copied material is being used. Since copyright law seeks to encourage scholarship, research, education, and commentary, a court is more likely to find fair use if the defendant's use is noncommercial, educational, scientific, or historical.
For example, copying a photograph of a painting found in an art history textbook for the purpose of scholarly commentary on the work would be fair use. By contrast, using that same copyrighted photo on an advertisement for a commercial product would not be fair use.
Not all educational or scientific uses, even not for profit, will qualify as fair use. For example, a teacher making photocopies of a whole novel for students in her class would not be considered fair use.
When considering the purpose and character of the use, courts will look at whether the use is transformative—that is, whether the allegedly infringing use adds new expression, meaning, or message to the original work..
Fair Use and Transformative Use in the Highest CourtThe issue of transformative use has been central to two recent U.S. Supreme Court fair use cases. In Google LLC v. Oracle Am., Inc., a 2021 case, the Court found that Google's copying of Java code from Oracle application programming interfaces (APIs) was transformative and fair use. In Warhol Foundation v. Goldsmith, decided in May 2023, the Court ruled that silkscreen and pencil drawings made by Andy Warhol based on a photograph of the musician Prince did not add new meaning or message to the original and therefore is not transformative and not fair use.
The second factor in the fair use determination is the nature of the work that's being copied. For example, a court will ordinarily consider whether the copied work is informational or entertaining in nature. A judge is more likely to find that something is fair use if material was copied from a factual work, such as a biography, than from a fictional work, such as a romance novel or horror movie.
As the Supreme Court stated in Sony Corp. of America v. Universal City Studios, Inc., "copying a news broadcast may have a stronger claim to fair use than copying a motion picture." Why? Because copying from informational works such as scholarly, scientific, or news journals encourages the free spread of ideas and encourages the creation of new scientific or educational works, all of which benefit the public.
Published vs. Unpublished WorksIn addition, the court will consider whether the work that's being copied is published or unpublished. The scope of fair use is narrower for unpublished works because of the author's right to control the first public appearance of his or her expression.
The case of Salinger v. Random House, Inc. (811 F.2d 90 (2d Cir. 1987)) provides an example. A biographer was sued for having paraphrased portions of letters written by J.D. Salinger. Although the public could read these letters at a university library, Mr. Salinger had never authorized their reproduction or publication. Despite the scholarly purpose of the proposed Salinger biography, the court would not permit the unauthorized paraphrasing of Mr. Salinger's unpublished letters as a fair use.
How much of the original work did the defendant use? One sentence of a book, or an entire chapter? A five-second clip of a film, or the whole movie? One detail of a painting, or the entire painting? And how important is the copied material to the original work?
In finding fair use in the Google v. Oracle case, the Court noted that the code Google copied was only 0.4% percent of the entire Java SE platform and wasn't substantial. In contrast, in the Harper & Row v. Nation Enterprises case, which we cover below, 300 words out of a 200,000-word manuscript (0.15%) were considered substantial because the 300-word excerpt was at the heart of the book.
The fourth factor in a fair-use determination is the effect of the use on the potential market for the work that was copied. If the allegedly infringing work hurts the market for the original work, this factor cuts against fair use.
In the Harper & Row case, The Nation magazine got hold of a pre-publication copy of former president Gerald Ford's memoir and published an article containing a verbatim 300-word excerpt from the book. Again, the excerpt accounted for 0.15% of the book. But the excerpt dealt with Ford's reasoning for pardoning former president Richard Nixon, which the Supreme Court concluded went to the heart of the book. The Court determined that publication of the excerpt likely hurt the sales of the book and as a result was not fair use.
The Market Includes Potential New UsesThe market for your work includes not only the market for the work as it exists today, but also potential new uses (adaptations) and markets.
Let's say you write a book and you own the copyright in the book. You realize one market for your work by selling your book to the public (or having a publisher do it). But what if there might be markets in other countries for foreign language translations of the book? Or what if the book has screenplay and movie potential?
Someone can't sell a translation of your book or make a movie based on it without licensing translation or movie rights from you. You own the translation and film rights even if you presently have no plans to exercise those rights. Translation and movie rights are part of the market for your book and it's up to you whether and how you exploit those rights.
If all four factors go in favor of fair use, a court will find that the use is fair. If each goes the other direction, a judge will say that it isn't fair use.
But if the factors point in different directions, with some favoring fair use and some not, a court will balance the facts to determine whether the use is fair. There's no exact formula for determining whether the factors, on balance, indicate fair use, and no single factor is determinative. For example, as discussed above, not all educational uses qualify as fair use, and even small amounts of copying can be unfair use.
If you're unsure whether your planned use of another's work will qualify as fair use, you should err on the side of caution and seek permission. If you get permission and you stick to the permitted use, you're protected against an infringement claim. If the copyright holder won't give permission, that's a good indication that they might go after you for infringement if you then use the work without permission.
Acknowledging Source Material Isn't EnoughIf you don't have permission to use another's copyrighted work and your use doesn't qualify as fair use, crediting the original source won't protect you against a claim for copyright infringement. Crediting is good practice, but it's not a substitute for permission or fair use.
Perhaps a copyright owner won't give you permission to use their work. Or you might have received a cease-and-desist letter demanding that you stop using certain third-party content. In either scenario, if the content is important to your work and you think your use might be fair use, consider consulting a business attorney who understands copyright law.
Fair use law is complicated and damages for infringement can be substantial. A knowledgeable lawyer can help you chart the best course.