Copyright law grants a bundle of six exclusive rights to the holder of the copyright, including the right to reproduce a work in copies or phonorecords. These rights are limited in several ways, including by the doctrine of fair use, which serves as a defense in a copyright infringement lawsuit. The doctrine is codified in Section 107 of the Copyright Act, which lists various types of reproduction that the law considers fair. Typically, fair uses include criticism, comment, research, scholarship, news reporting, and teaching. However, whether or not a particular use is a fair use or an infringement is not always clear.
There are four factors that have to be considered when deciding if a particular use is protected by the fair use doctrine:
- The purpose and character of the use;
- The nature of the work being used;
- The amount and substantiality of the part that is used in relation to the copyrighted work as a whole; and
- The effect of the use on the potential market for the original work of authorship.
Relying on the fair use defense is always risky. Courts have interpreted these factors differently, and there are subjective judgments involved. Therefore, it can be difficult to predict how a court will rule when a defendant asserts fair use as a defense in a copyright infringement suit, even though this area is heavily litigated and the case law is well developed. In general, parodies that copy original work in order to criticize, attack, or make fun of it are given greater leeway under the fair use doctrine than any appropriation that is interpreted alongside the original work.
Nature and Purpose of the Use
The first factor that must be considered, the nature and purpose of the use, has been considered the primary indicator of whether a particular use is protected. If you want to use copyrighted material and are wondering about this first factor, you should start by considering whether what you have taken has been taken for a commercial or nonprofit educational purpose.
In general, if you have taken for a mostly nonprofit educational purpose, this factor balances in your favor. For example, if you have made photocopies of a short story in order to teach kids how to write, this factor weighs in your favor. On the other hand, if you have made copies of another artist’s painting and affixed them on keychains to sell at a street fair, this factor will weigh against you.
You should also be thinking about whether you have transformed what you have taken by adding expression, aesthetics, insights, and meaning that were not in the original work. For example, the Supreme Court has been inclined to side with parodists who transform original works in order to criticize and poke fun at their meaning. However, if a defendant has compiled an “encyclopedia” to work alongside an author’s original series of fantasy books, this alteration is not significant enough to justify verbatim copying. Copying must be transformative for this factor to work in a defendant’s favor.
Nature of the Original Work Being Used
In general, if an original work of authorship is factual or informational, there is more leeway to copy than there is if it is fictional or expressive. This is partly because the dissemination of facts is considered in the public interest. If you are copying, you also have a better chance of this factor falling in your favor if you are copying from a published work, rather than an unpublished one.
The Amount and Substantiality of What Is Taken
The more of an original work that is taken, the less likely your use of the material will be considered fair. The part that you have taken will also be considered. If you take the most memorable or integral aspect of the work, this factor is less likely to be in your favor. For example, if you take the guitar opening to “Under Pressure” to place in a rap song that does not comment on David Bowie’s “Under Pressure,” this factor will probably not fall in your favor. However, if you are creating a parody or critique of the meaning of David Bowie’s “Under Pressure,” you would probably be permitted to take more because the audience will not understand the parody as a critique of the original work unless you conjured up the original work.
The Effect of the Use Upon the Potential Market
The final fair use factor is also critical. If your work deprives a copyright holder of income or reduces an existing or potential market for an original work, it is likely this factor will be decided against you. Courts are clear that even if you have, by copying, created a work that the original author would never have created, if your work adversely affects a potential market, this factor weighs against you.
As with the other factors, a parody that takes from an original work of authorship in order to critique it or make fun of it is handled differently. The issue is whether the parody fulfills the demand for the original or whether it simply causes a loss of income to the original author because it successfully critiques his or her work and makes it hard for an audience to take the original work seriously again. For example, when 2 Live Crew wrote a rap parody of Roy Orbison’s “Pretty Woman,” the Supreme Court found that a potential “derivative” rap market for Orbison’s version was not harmed by a parody making fun of Orbison’s version.