Fair use is a section of Copyright Code that allows for the use of protected works without obtaining a license/permission. The most important thing to know about fair use is that it is flexible and not defined by one thing, but rather an evaluation of the proposed use. It also helps to come at the issue in good faith and try to demonstrate you are trying to make your use fair. There are four factors to help you determine if your use is fair.
- The purpose and character of your work
- This is often called the transformative factor. Is something new being created by incorporating this fair use? This can include scholarly commentary about said work, research, parody, etc.
- Determing what is transformative can be difficult. In SOFA Entertainment, Inc. v. Dodger Productions, Inc., a documentary used a 7 second clip of the Four Seasons appearing on the Ed Sullivan show. The judge wrote: “Being selected by Ed Sullivan to perform on his show was evidence of the band’s enduring prominence in American music, by using it as a biographical anchor, [the defendant] put the clip to its own transformative ends.”
- However in Steinberg v. Columbia Pictures Industries, Inc. it was ruled that the new poster for the film for Moscow on the Hudson did not create a transformative work, it simply stole the parody that the New Yorker had already created.
- The nature of the copyrighted work
- Is this a creative or a factual work? If the work is factual, your fair use argument becomes stronger because providing factual information to the public is beneficial.
- Your case is also stronger if the work is published, as in many times the author of unpublished work should be allowed to control its first appearance.
- The amount and substantiality of the portion used
- There is no percentage of the work, number of pages or minutes defined by copyright code to use as a guide, though many institutions have their own policies including those factors.
- The less you take, the better your argument for fair use is, so only use what you absolutely need to.
- Substantiality refers to the "heart of the work." Your use is unlikely to be fair if you use the most important part of the work.
- In Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc., CBS used of a one minute and fifteen second clip of Charlie Chaplin, the court felt that the portion of the clip was the heart of the film and the clip was too long to be fair use.
- The effect the use will have on the potential market
- Is this use going to prevent the rights holder from profiting on the work?
- In Rogers v. Koons, an artist created and sold sculptures based on another artist's photographs. The courts ruled this as not fair use as it did not matter that the photographer may not have thought of creating and selling sculptures, but that a market for them did exist.