Copyright Fair Use

Purpose and Character of the Use

The Supreme Court has called the fourth factor, the effect on the market, “undoubtedly the single most important element of fair use,” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566 (1985), and it has also said that all four factors “are to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell v. Acuff-Rose Music, 510 U.S. 569, 578 (1994). The first factor asks whether the new use has a further purpose or different character from the original. “If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying.” Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023).

Naturally, the Supreme Court has held that infringement for commercial use is less likely to be found as “fair use” than for non-commercial use. In Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), the Court found that a news magazine’s quotations from President Ford’s memoirs were not a fair use, in part because the use was commercial rather than nonprofit even though the article was quasi-news reporting. The Court rejected defendant’s fair use defense.

A nonprofit purpose does not guarantee fair use. In Encyclopaedia Britannica Educational Corp. v. Crooks, 542 F. Supp. 1156 (W.D.N.Y. 1982), film producers sued a nonprofit board of educational services that videotaped educational programs from television broadcasts and made copies for its member schools. The court accepted that the use was “clearly educational and non-commercial,” but held that “the massive scope of the videotape copying and the highly sophisticated methods used by the defendants in producing and distributing these copies cannot be deemed reasonable,” and it found no fair use.

The Nature of the Copyrighted Work

Courts grant more leeway to the defense of fair use if the defendant’s infringement is from a work that has already been published and if the original copyrighted work is nonfiction. Copying unpublished material weighs against fair use because it takes away from the author’s ability to be the first person to publish their work, although the statute says that a work’s unpublished status does not by itself bar a finding of fair use. Courts are also less receptive to copying fiction and other creative work, because “some works are closer to the core of intended copyright protection than others.” Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).

The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work

The general rule is “less is more.” The less a protected work is copied, the more likely a court will find it was fair use. An exception to this is if the small amount copied takes from the “heart of the work” or the most influential part of the work. This rule does not apply to parodies. The Supreme Court has said, “the heart is also what most readily conjures up the [original] for parody, and it is the heart at which parody takes aim.” Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).

The Effect of the Use Upon the Potential Market for the Copyrighted Work

A way to determine this factor is to look at the function of the defendant’s work versus the function of plaintiff’s work. If they perform the same function, then it is likely that the defendant’s work has cut into the market of the plaintiff. This factor looks at potential harm, but actual harm can be incredibly persuasive to a court.

In Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992), an artist made a sculpture from another artist’s photograph, copying the essence of the photograph “nearly in toto.” The sculpture was in a different medium from the photograph, but the court determined that it still harmed the photographer’s potential market. More specifically, the court stated,

[T]he owner of a copyright with respect to this market-factor need only demonstrate that if the unauthorized use becomes “widespread” it would prejudice his potential market for his work. The reason for this rule relates to a central concern of copyright law that unfair copying undercuts demand for the original work and, as an inevitable consequence, chills creation of such works. Hence the inquiry considers not only harm to the market for the original photograph, but also harm to the market for derivative works. It is obviously not implausible that another artist, who would be willing to purchase the rights from Rogers, would want to produce a sculpture like Rogers’ photo and, with Koons’ work extant, such market is reduced. Similarly, defendants could take and sell photos of “String of Puppies,” which would prejudice Rogers’ potential market for the sale of the “Puppies” notecards, in addition to any other derivative use he might plan.

Id. at 312.

The Four Factors Not Exclusive

These four factors in determining if a work is fair use are not meant to be exclusive. In fact, many courts have considered additional factors when deciding fair use. One additional factor courts have considered is the amount and substantiality of the copied portion in relation to the defendant’s work as a whole. Lastly, while some factors are considered more heavily than others, the Supreme Court has stated that no single factor is conclusive.