"Fair Use" Doctrine
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Fair Use – 4 Factor Balancing Test
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As previously mentioned, courts will consider at least 4 factors in determining whether the use of a copyrighted work constitutes "fair use," which include the:
  1. purpose and character of use
  2. nature of the copyrighted work
  3. amount and substantiality of the portion used from the copyrighted work
  4. effect on the value of the copyrighted work
Now, let’s explore these factors in a little more detail to see how they’re generally evaluated. Also, keep in mind that each factor must be weighed with the other factors before a final determination of whether something is considered to be "fair use" or not.

1 – Purpose and Character of use

Courts will look to the purpose and/or character of using the copyrighted work. For example, courts may be more likely to allow use if the use is for educational, personal and/or nonprofit activities. Courts may be somewhat neutral if the use if for criticism, comments and/or news reporting. And courts may be less likely to allow use if the use is for commercial activities, i.e. to make a profit.

Courts may also look to whether the use is a transformative or derivative work. A transformative work is essentially a completely new work (that may have only used a few aspects of the original copyrighted work). In contrast, a derivative work is derived from the original copyrighted work. So, courts may be more willing to allow transformative works, as opposed to derivative works under the "fair use" doctrine.

With all that said, the purpose and/or character of the use will have a bearing on what the court decides.

2 – Nature of the Copyrighted Work

The nature of the copyrighted work deals with how the work was created and used. For example, a person may be more likely to "fairly use" a published work based on facts, as opposed to an unpublished creative work. What do we mean?

Well, for example, a person may be more able to "fairly" use a quote from a published non-fictional novel based on historic facts, as opposed to an unpublished fictional story created by the author. However, there are no hard and fast rules under this factor. The court would likely consider how the other 3 factors apply to this factor.

3 – Amount and Substantiality of the Portion used from the Copyrighted Work

This factor essentially asks, "How much of the copyrighted work will you use?" This is a sliding scale. The less of the work a person uses the more likely the court will find "fair use."

However, if a person uses more than a small amount of the work, the court may find copyright infringement. Also, keep in mind that merely using a small amount from a work will not shield you from copyright infringement. For example, if you use only a few lines from an 180,000 word novel, but those lines are determined to be the most significant part of the entire novel, you may have committed copyright infringement.

4 – Effect on the Value of the Copyrighted Work

This factor generally has the most weight of the 4 factors. That’s because this factor generally deals with how money is made off of the copyrighted work.

In other words, with this factor you could ask, "Would the use of this work take money away from the copyright owner?" If you answer "yes," it’s likely that the use would be considered copyright infringement.

Because of this factor, it’s generally a very good idea to stay away from using any copyrighted materials that could take away money that could be earned by the copyright owner. In fact, the best option is usually to get written permission from the copyright owner to use the work prior to using the work yourself. If it’s impossible to get permission (or find the copyright owner) to use the work, you may want to avoid using the work altogether, unless the "fair use" doctrine clearly applies. Finally, it’s usually a good idea to consult with an attorney in cases of doubt.

Next, we’ll go over a "fair use" example on the internet.