After a plaintiff has been able to prove copyright infringement a defendant can allege a number of defenses, including fair use. A defense of fair use is not alleging that an infringement did not occur, but rather that the infringement is excusable. The defense of fair use allows courts some flexibility to assess matters on a case by case basis so a court can still uphold the spirit of copyright law—encouraging production of works of authorship—while maintaining the balance of equity.

Section 107 of the Copyright Act of 1976 does not provide a definition of what is considered fair use, but instead gives examples along with factors for a court to consider and states,

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

17 U.S. Code § 107.

Purpose and Character of the Use

The Supreme Court has opined that the purpose and character of use factor is the primary indicator of fair use.

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 v. 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 as commercial use even though the article was quasi-news reporting. The Court rejected defendant’s fair use defense.

In Encylopaedia Britannica Educational Corp. v. Crooks, 542 F.Supp 1156 (W.D.N.Y. 1982), a number of public school districts were sued because of their use of educational motion pictures. The motion pictures were shown on public television and schools were provided copies. The court acknowledged that although the broadcasting and dissemination was for educational purposes, the factor of convenience for the schools of distributing plaintiff’s protected work should not be considered. The distribution was also classified as commercial because the videos were being sold to schools. Since the defendant was selling the videos to schools, it was directly competing with plaintiff’s ability to do so. As a result, the court found that there was 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. The reason that infringement on prepublished material is not granted fair use is because it takes away from the author’s ability to be the first person to publish their work. Additionally, courts do not favor the copying of fiction work because there would be little to no reason to directly quote or copy works of fiction.

The Amount and Sustainability 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. However, 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 used another’s photographs as the inspiration for sculptures and copy all parts of the photographs. The defendant argued that it was fair use since the plaintiff never intended to make sculptures. The court disagreed and determined that it still infringed on plaintiff’s potential market. More specifically, the court stated,

[T]he owner of a copyright with respect to his market-factor need only demonstrated that if the unauthorized use becomes “widespread” it would prejudice his potential market for his work. The reason for this rule relates to the 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 “Puppies” notecards, which would prejudice Rogers’ potential market for the sale of “Puppies” notecards, in addition to any other derivative use he might plan.

Id. at 313.

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 sustainability of the copies 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.