Fair use may be used as an affirmative defense against a claim of copyright infringement. Fair use allows usage of a limited amount of copyrighted material without permission from the owner of the work. Examples of fair use may include excerpts from a work for the purpose of criticism or commentary, parodies, and certain limited usages for academic work.
Fair use is one the most difficult copyright law doctrines to analyze. Decisions on the fair use doctrine are varied and often conflicting and it is often hard to provide a definitive decision on whether use of copyrighted work may constitute fair use. Ultimately, it is a decision that must be made by the court presiding over the copyright infringement case.
The Copyright Act contains four statutory factors that guide a court engaging in a fair use analysis:
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.
17 U.S.C § 107
Though the factors appear relatively straightforward, each factor has been enumerated upon by precedential decisions to include certain sub-tests or further analysis.
Factors 1 and 4 are generally the most important factors for the court. When reviewing factor 1, the court will look to whether the alleged infringement created a “transformative” work. A work may be transformative if is uses the original work in a completely new or unexpected way with a further purpose or different character. Transformative uses are more likely to be consider fair use.
If the portion of the original work used was exceedingly minimal or very trivial, the court may permit a de minimis defense. For example, the copyright owner of several photographs that appeared in the movie Seven sued the producer of the movie for the display of his works. The court found that the photographs “appear[ed] fleetingly and [were] obscured, severely out of focus, and virtually unidentifiable.” Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998). Because of the minimal usage of the copyrighted work, the court found that there was de minimis use.
Chelsie Spencer is a Senior Associate with the Dallas office of Kennedy Law, PC. She may be reached at 214-716-4345.