Fair Use
Fair use is codified in Title 17 Chapter 1 § 107.
Fair use is an important exemption to a copyright holder's rights. Any use for "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright." There are four factors to consider when determining whether a particular use is fair. The factors are:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit 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.
All of these factors need to be considered. Use of a copyrighted work for noncommercial purposes is more likely to be fair than use for commercial purposes. Use of a work that is factually based is more likely to be fair than use of a work that is highly creative. Using a small part of a work is more likely to be fair than use of the entire work. And finally, fair use should not have a great effect on the market for the original work.
It is important to note that there is no "bright line" test for determining fair use. You cannot say, for example, that if you only use 10 seconds of a song that it's fair use. You have to consider all of the factors when trying to determine fair use . At the same time, you can't say that using most or all of a song is not fair use. You still must consider all of the factors on a case-by-case basis. People will have different opinions on whether a particular use is fair. The vagueness of the fair use doctrine is sometimes problematic, because it is impossible to know with 100% certainty that any particular use is fair unless the specific matter is put before the courts. However, it is an intentional vagueness, because Congress did not want to provide hard limits on fair use.
Parody
Anne Leibovitz took a now-famous picture of a pregnant Demi Moore, which was published on the cover of Vanity Fair. Leslie Nielson later appeared in an advertisement for "Naked Gun 33 1/3" that was an obvious take-off on the original image. Leibovitz sued Paramount for copyright infringement, but lost when the courts determined it was a fair parody.
Anne Leibovitz and the Naked Gun (with pictures)
Leibovitz v. Paramount Pictures 137 F.3d 109 (2d Cir. 1998)
Is fair use a right or a defense?
We often see fair use labeled in different ways. Court cases, Congressional records, articles, and other sources will treat fair use differently. Some state that fair use is an affirmative defense. Others state that fair use is a right. I've asked several people about this particular subject, including Wendy Seltzer and Georgia Harper. I found their explanations very useful. Fair use, by statute, is not copyright infringement. The use of "right" and "defense" occurs when people are arguing for a certain viewpoint. If merely an affirmative defense, then the burden of proof always rests on the person who is claiming fair use. If a right, then laws and licenses that restrict fair use can be challenged.
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