• Joseph Perry, Esq.

What is Fair Use?

I get this question all the time. Let's start with the basics. Fair use a copyright infringement defense. Under Section 107 of the Copyright Act, you're allowed to use certain works in certain limited ways without getting a copyright owner's permission.


There are certain misconceptions that people have about fair use. For example, you may hear someone say it's fair use because you only used a small percentage of the work, or it's fair use because your use is for educational purposes. You need to take all your assumptions and throw them out the window.


Fair use is complicated. Case law is a mess, and Section 107 isn't exactly clear in what is fair use. With that said, courts generally analyze four factors in determining if your use is fair. And important: they look at all four factors IN TOTALITY. That means it won't matter if you only took 10% of the work or that you used it for research purposes. It may still be copyright infringement. Context matters. Below are the four factors courts generally look at:


  1. The Purpose and Character of the Use - courts look at why you're using the copyrighted work. In the preamble of section 107, there are certain uses that are favored like education, research, scholarship, etc. Commercial use is generally unfavored. However, you need to look at all four factors first before any fair use determination is made. Also, under factor 1, "transformative use" is important. That means you've added new meaning and utility to a work. If your use is "transformative" you're literally doing the job of copyright law, which is to promote the arts. You're not copying something but you are repositioning the work and giving that copyrighted work new context and meaning.

  2. The Nature of the Work - courts look at whether your work is factual or creative. Factual works get less protection. Courts want information disseminated throughout society, and factual works do that. Creative works, on the other hand, get more protection. In addition, unpublished works get protection because courts think you should be able to determine where your work first gets published.

  3. The Amount or Substantiality of the Work Used - courts look at how much work you took quantitatively and qualitatively. This is where the "small percentage taken" misconception comes in. There's a famous Supreme Court Case called Harper and Row v. The Nation, where the Nation scooped Time Magazine and published approximately 300 words of President Ford's memoir of why he pardoned President Nixon. SCOTUS ruled in favor of Harper and Row, partly because those 300 words were considered the "heart of the work." So as you can see taking small amounts may not be fair use.

  4. The Effect on the Marketplace - courts look at whether your use deprives the copyright owner of income or weakens a new or potential market for the copyrighted work. If you can get a license, that may make your use unfavored. Do your research. Also, look at your purpose. This is whether the marketplace and purpose are tied together. If it's for commercial purposes, it may not favor you. However, if you're disseminating your work to your friends in private or using it for educational purposes, there may not be an effect on the market.

As you can see, fair use is complicated! It's on a case-by-case basis. I help authors with fair use all the time, so if you have any questions, feel free to reach out by email: jperry@josephperrylaw.com or call me at 914-775-8774.


Disclaimer: This article is for information purposes only and is not designed to be legal advice nor to be construed as such. If you have a legal issue, contact an attorney near you.

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