Notwithstanding the provisions of sections 106 and 106A, the 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.As you can see, the Fair Use Doctrine as codified is meant to be applied flexibly, on a case-by-case basis, with many factors considered. Several different factors are listed, but the court can consider other factors as well. Going through each of the listed factors:
(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes: use for a commercial purpose is less likely to be deemed fair use than use for nonprofit educational purposes. Moreover, if the accused acted in good faith, it is more likely to be found a fair use. Incidental use, as opposed to extensive copying, is more likely to be deemed fair use.
(2)the nature of the copyrighted work: whether a work is published or not can be important-- copying an unpublished work is less likely to be deemed fair use.
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole: if an unimportant portion of a work is copied, or if a small amount of a work is copied, it is more likely to be deemed a fair use.
(4) the effect of the use upon the potential market for or value of the copyrighted work: If the copying has the potential to impair the marketing efforts of the owner of the copyrighted work, it is less likely to be deemed fair use.
The Supreme Court has made it clear that no single factor is conclusive in determining fair use. The fair use defense. If you have any questions about the fair use defense to copyright infringement, email us or post them on the blog. The email is JDellinger@mainspringlaw.com. We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.