The 4 Factors of Fair Use

While it's nearly always worth securing copyright protection with assistance from an entertainment lawyer in Los Angeles, the use of copyrighted material by others is not always restricted. A legal doctrine known as fair use aims to promote freedom of expression by allowing for the unlicensed use of protected works in select circumstances. Unfortunately, it can be difficult to predict when courts will deem certain types of use 'fair.' Section 107 of the Copyright Act helps by providing four factors by which the fair use defense should be assessed:

Purpose and Character of the Use

Essentially, this fair use factor determines whether the user intends to create something new or simply repackage existing material. Courts are generally more inclined to consider non-profit material and works of scholarship as fair use. Parodies are also typically given the go-ahead, as they are deemed 'transformative' in nature. 

While the U.S. Copyright Office explicitly states that non-commercial works are more likely to be deemed fair use, that certainly doesn't imply that all non-profit works are legitimate or that all commercial works constitute copyright infringement. Rather, courts balance the purpose (including the creator's financial goals) of the work against the other three factors, with non-profit works sometimes granted more leeway in the factors outlined below.

Nature of the Work

Whether and how a particular piece of work benefits the public may play into the efficacy of the fair use argument. Courts are more forgiving of use that is clearly of a factual or technical nature, versus the unauthorized use of creative material. For example, somebody who uses a news report without permission is more likely to succeed in a fair use defense than somebody who uses material from a novel or a movie. Furthermore, the U.S. Copyright Office suggests that the use of unpublished material is far less likely to be deemed fair. 

Substantiality of the Portion of Work Used

Courts may permit the fair use argument when the portion of material copied is especially insignificant. Often referred to as 'de minimis,' this defense can sometimes be permitted before a fair use analysis is even conducted. As with several elements of fair use, there is no one defined point at which the portion of unauthorized work is considered excessive; ultimately, it all comes down to court discretion. 

The smaller a portion of a particular work is used, the more likely the fair use defense is to hold up. The term 'portion' does not necessarily reference length, however. In many cases, courts examine the 'heart' of the work in an effort to determine whether a piece's most memorable or groundbreaking aspects were improperly used.

How the Use Affects the Market

While some individuals or companies sue for copyright infringement purely because they desire recognition for their work, others are far more concerned about the monetary implications. Hence, the effect of a work's use as a copyright matter. A lawsuit is far more likely to occur if the unauthorized use of a particular work results in financial losses. Proving fair use can be difficult if those losses are significant. 

Questions of Morals: A 'Fifth' Fair Use?

Experts at Stanford highlight questions of morality as a fifth factor that could determine the validity of a fair use defense when other factors conflict due to their subjective nature. While the Supreme Court has concluded that offensiveness does not constitute a fair use factor, perceptions of morality have occasionally played a role in federal court cases. 

There is no straightforward path to determining whether the use of copyrighted material is permissible. While all four factors are theoretically of equal importance, courts tend to focus on the use's character and its effect on the market.

Only with detailed research is it possible to assess the existence of fair use under a specific set of circumstances — and even then, the courts have been known to surprise. Given the subjectivity of fair use in court, there is no substitute for skilled who thoroughly understands the complexities of copyright law.