Copyright Law & the Fair Use Doctrine

Fair use is a legal concept that allows the unlicensed use of copyright-protected works in certain situations. Essentially, using a copyrighted work with a fair use is a complete defense to a claim of copyright infringement.

Unfortunately for the general public, the only way to get a definitive answer on whether a particular use qualifies as a fair use, it to litigate the issue in federal court. Courts use the following factor test to determine if a use of copyrighted work qualifies as a fair use:

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.

There is no exact formula to determine whether an action qualifies as a fair use

Although courts look to these factors to determine whether an unlicensed use qualifies as a fair use, courts may take other factors into consideration given the circumstances. Courts evaluate fair use claims on a case-by-case basis. This means there is no exact formula to determine whether an action qualifies as a fair use. We’ve described the four-factor test in more detail below.

 

1. Purpose and Character of Use.

Courts will look at how the party claiming fair use is using the copyrighted work. Generally, courts are likely to find most nonprofit, educational and noncommercial uses are fair. That’s not to say all nonprofit or educational uses are considered fair use, rather, courts will likely favor uses that are for nonprofit or educational purposes when determining if a use qualifies as a fair use. Additionally, “transformative” uses are likely to qualify as fair uses. Transformative uses are those that add something original to the use, but do not substitute for the use of the work.

 

2. Nature of the Copyrighted Work.

This factor addresses the degree to which the copyrighted work relates to the purpose of encouraging creative expression. This means copyrighted works that are more creative and original will have stronger protections against fair uses. For example, use of a copyrighted fictional novel is less likely to support a claim of fair use than use of a factual work like an accounting textbook.

 

3. Amount and Substantiality of the Portion Used

Here, courts analyze the quantity and quality of the copyrighted material that was used. The larger portion of the copyrighted work that is used, the less likely fair use. However, courts have sometimes found use of an entire work be fair under certain circumstances, while on the other hand, using a small portion of a work may not be a fair use because the specific portion was at the “heart” of the work. 

 

4. Effect of the use on the Potential Market

Courts will determine whether the unlicensed use harms the existing or future market for the copyright owner’s original work. For example, courts will consider whether the use hurts the current market for the original work, like displacing sales of the original work, and whether the unlicensed use would cause substantial harm to the copyright’s owner.

 

Examples of Fair Use

The following examples are likely fair use, however since these scenarios are evaluated on a case-by-case basis there is always room for uncertainty.

  • A student or teacher using a copyrighted work during a presentation to the class, including quotes from published writing or clips from songs or videos.

  • A professor copying 15 pages from a 500-page textbook to distribute to the class as supplemental reading.

  • A professor makes a copy of an article from a copyrighted periodical for her files.

  • Quoting other researchers’ writing or using others’ images, graphics or charts in your own scholarly articles.

  • Quotes in books or blogs.

  • Parodies, such as Saturday Night Live, South Park, and Weird Al Yankovic songs

  • A documentary film maker using clips from major motion pictures to discuss arguments on how Hollywood represents minority stereotypes.

 

Examples of Actions that Likely do not Qualify as Fair Use

  • A professor making copies of an entire textbook for students.

  • A professor scanning an article from a copyrighted journal and adding it to his public web page.

  • A school principal wishes to raise money for a scholarship fund. The principal rents a major motion picture with a valid copyright and charges the public an admission fee to see the film.

  • An author mimicking the style of Dr. Seuss’ “Cat in the Hat” to retell the facts of the O.J. Simpson murder trial.

 

Fair Use in the Age of Social Media

Crediting the owner does not provide protection against copyright infringement

Copyright issues have recently become a major issue with the prevalence of social media. Almost everyone with a social media account has “shared” something that was copyrighted by someone else. But where does fair use come into play with social media?

It’s unlikely the fair use doctrine would protect a party when posting a copyrighted image on social media. Just because a photograph, video or song is posted on social media does not mean the content can be reproduced without infringing on a copyright. Additionally, crediting the owner of the work does not provide protection against copyright infringement. The individual wishing to reproduce the work must obtain a license or approval from the copyright owner.

Turning to another issue recently in the news regarding social media and copyrights. Who has the right to publish paparazzi photos of celebrities? This copyright issue has come up in cases where celebrities post photos of themselves, taken by paparazzi, to their personal social media accounts. Many photo agencies have been aggressively pursuing legal action against celebrities that have posted paparazzi images on social media without obtaining permission. Some celebrities that have been sued recently include Jennifer Lopez, Gigi Hadid, Khloe Kardashian and Arianna Grande. It seems a little absurd that people are being sued for posting photos of themselves. However, copyright law and the fair use doctrine heavily favor the photographers in these cases. A photographer has copyrights to any photograph they take, and as long as the photo was taken in a public place, the subject of the photo has no right to the image. Most celebrities faced with these lawsuits have decided to settle outside of court. However, it’s easy to see how their use of paparazzi photos would not qualify as a fair use of a copyrighted material. None of this is say whether this situation is fair, just that copyright law is on the paparazzi’s side using the four-part test from above.

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

 Many celebrities make money from posting on social media. For example, celebrities may promote the brands they are wearing in a photo posted to social media. Therefore, it’s easy to argue these photos lean toward being commercial in nature.

2. The nature of the copyrighted work.

Paparazzi photos of celebrities would qualify as original works. For example, a photographer covering the Academy Awards would take very original photographs. Essentially, there will only be one instance where this celebrity wears this exact outfit to the 2019 Academy Awards. Thus, making it an original work. 

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

This factor is fully satisfied because celebrities are posting an exact replica of the photograph without changes.

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

Paparazzi’s make their money by selling photographs of celebrities to online websites and other printed mediums. The market for a specific celebrity photo is completely destroyed when the subject of those photographs takes a copyrighted photo and distributes it for free on social media.