Fair use is an affirmative defense that can be raised in response to claims by a copyright owner that a person is infringing a copyright. Fair use permits a party to use a copyrighted work without the copyright owner’s permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. These purposes only illustrate what might be considered as fair use and are not examples of what will always be considered as fair use. In fact, there are no bright-line rules in determining fair use, since it is determined on a case-by-case basis. But copyright law does establish four factors that must be considered in deciding whether a use constitutes a fair use. These factors are:
The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
The effect of the use upon the potential market for or value of the copyrighted work.
Although one factor or another may weigh more heavily in a fair use determination, each of the factors must be considered and no one factor alone can determine whether the use falls within the fair use exception. However, the factors that are usually the most influential are the first and fourth factors.
Factor 1: The Purpose and Character of the Use
The first factor mostly focuses on whether the use is commercial or non-commercial and whether the use is transformative. If a use is commercial it is less likely to be fair use and if it is non-commercial it is more likely to be fair use. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work. If the use is transformative it is more likely to be fair use and if it is not transformative it is less likely to be fair use.
Factor 2: The Nature of the Copyrighted Work
The second factor considers the nature of the underlying work, specifically whether it is more creative or more factual. Use of a more creative or imaginative underlying work is less likely to support a claim of fair use, while use of a factual work would be more likely to support a fair use claim. This factor also looks at the publication status of the copyrighted work. When the copyrighted work is unpublished the use is less likely to be a fair use.
Factor 3: The Amount Used
The third factor considers the amount of the copyrighted work that was used compared to the copyrighted work as a whole. Where the amount used is very small in relation to the copyrighted work, this factor will favor a finding of fair use, but where the amount used is not insignificant, this factor will favor the copyright owner. This factor also considers the qualitative amount of the copyrighted work used. If the portion used was the “heart” of the work, this factor will likely weigh against a finding of fair use even if that portion was otherwise a very small amount.
Factor 4: The Effect of the Use on the Market
The fourth factor not only considers whether the defendant’s activities may harm the current market, but also considers whether the use may cause any harm to potential markets that could be exploited by the copyright owner if the use were to become widespread.If the use harms the copyright owner’s current or potential market then it will weigh against fair use. Along with the first factor, this factor is one of the most important in the fair use analysis.