Fair Use: Four Factors

DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

To make a determination of fair use, a court would look the four factors stated in the copyright law, namely:

1. the purpose and character of the use;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

“The four statutory factors are to be explored and weighed together in light of copyright’s purpose of promoting science and the arts.”
— U.S. Supreme Court, Campbell v. Acuff-Rose Music, Inc., 1994.

Let’s look at each of the four factors in turn.

1. Purpose and Character

“The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test.”
— Judge Pierre Leval, ‘Toward a Fair Use Standard,’ 1990.

As Leval says, “Factor One is the soul of fair use.” The new work must be more than just a copy of the old work. Does it build on the previous work for the enrichment of society, or does it supersede the previous work for the enrichment of the author? In legal terms, is the work transformative or derivative?

“…the quoted matter [may be] …used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings…”
— Judge Pierre Leval, ‘Toward a Fair Use Standard,’ 1990.

2. Nature of the Copied Work

Although the quality of the original work is not a factor, other aspects may be. For example, is the work fictional or non-fictional?

3. Amount and Substantiality

Does the amount copied form “the heart” of the original work?

4. Effect upon Work’s Value

“This last factor is undoubtedly the single most important element of fair use. … Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied.”
— U.S. Supreme Court, Harper & Row v. Nation Enterprises, 1985.

Does the infringement substantially diminish the actual or potential opportunity of the original copyright owner to earn money from the original work?

“when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur.”
— U.S. Supreme Court, Campbell v. Acuff-Rose Music, Inc., 1994.

Other Factors

The four factors are not exclusive or limiting, and courts are allowed to considered other factors as well. These can include:

• Standard Expressions (Scènes à faire). Elements of a creative work that are stereotypical, largely mandated by the limited range of expression possible, or are customary to the genre cannot be avoided and are thus fair use. For example, many photos of a bottle of alcohol may look the same (Joshua Ets-Hokin v. Skyy Spirits Inc., 2000).
• Industry Practices What is typically done in business can affect what is considered fair use. For example, using a poster of artwork in the background of a TV show, although minor, is not fair use since the industry typically licenses such works (Ringgold v. Black Entertainment Television, Inc., 1997).
• Facts, Ideas and Concepts. These are not protected by U.S. copyright law and thus are generally open to public use.

Case Law

The courts often base their rulings on prior cases, so it is worth knowing the landmark cases of fair use in photography.