Law: Fair Use: Four Factors

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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.

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.