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Fair Use of Copyrighted Works

In copyright law, the fair use doctrine is a primary bulwark against abridgements of free speech. "Fair use" is an exception to copyright control — a right that acts as a defense to a claim of infringement. Judges first developed the concept of fair use, and in 1976, Congress incorporated it into Section 107 of the Copyright Act. The law gives some typical examples of fair use: copying or quoting for the purposes of commentary, criticism, research, scholarship, news reporting, and classroom teaching.

The law sets out four factors for courts to consider in deciding whether a use is "fair". The list is not exclusive — that is, courts are free to consider other factors as well, such as whether the plaintiff or defendant acted in bad faith. In most cases, judges try to look at each factor, and "add them up", to determine whether the use was fair, and therefore not an infringement of copyright.

The four factors are:

1. The purpose and character of the use — whether the new use is commercial, nonprofit, or educational, among other relevant characteristics; and whether it is "transformative" or merely substitutes for the original.


2. The nature of the original work — whether the original work is factual or creative; published or unpublished; in or out of print.


3. How much, and how substantial a part, of the original was taken — whether more was taken than needed, or whether the "heart of the work" was taken.


4. The effect of the new use on the market for or value of the original work — whether the new use substitutes for the original work in the commercial marketplace, or reduces its value by supplanting demand for the original.

Each of these four factors is open-ended. In different copyright cases over the years, courts have supplied interpretations, developed nuances, and applied the factors in ways that help us decide what uses are "fair".

But because the four factors are open-ended, it is often hard to predict how a court will apply them to a specific situation. The unpredictability of fair use often makes people reluctant to rely on it when they receive a cease and desist letter, or are looking for guidance on whether they need to ask permission for copying and quoting. Despite this unpredictability, it is important to assert fair use, and reject assumptions that all uses must be licensed and paid for.

[Fair Use: Intro | Factor 1 2 3 4]