"Fair Use": Four Factors You Need to Understand

"Fair Use" is one of the least understood, most litigated aspects of United States copyright law. In essence, it controls the use of other copyrighted works in your own art, writing, reviews or news reporting. The concept of Fair Use is judge-created and first surfaced in the 19th century. It was not until 1976 that Fair Use was codified by the U.S. Copyright Office.

To help both lawyers and the general public understand how previous cases were adjudicated, the Copyright Office offers a publicly accessible Fair Use Index. While it is in no way intended to replace qualified legal advice, the case summaries included in the index help researchers understand how and when judges have applied the "four-step analysis" to reach their decisions. These four deciding factors are:

1. The purpose and character of the use of copyrighted work. The main question at issue here: does the new work change the function and meaning of the original by connoting a message that was previously non-existent? If so, it may well be Fair Use.
2. The nature of the copyrighted work. Is the work you're borrowing from highly creative? Does it incorporate unique creative choices? If so, based on a review of decisions in the index, it appears more likely that Fair Use does not apply and that defendants will face a verdict of copyright infringement.
3. Amount and substantiality of the portion used. This one is self-explanatory. The more of the creator's original work you use, the harder it may be to win a Fair Use argument.
4. Future market harm. Does use of the original creation negatively impact its potential future sales and marketability? If so, it seems likely that the defendant's use will be deemed improper and damaging.

The succinct synopses of decided cases in the Fair Use Index typically run one page in length and can be downloaded as PDFs. They are not only interesting reading (plaintiffs include Dr. Seuss Enterprises and Fox News Network), these summaries also provide keen insight into the many ways defendants have run afoul of U.S. copyright laws.