"Fair Use" Doctrine


Nearly all of us have used a quote, excerpt, paraphrase, picture or some other form of another person’s ideas or thoughts. In many respects, it’s human nature to quote and/or use other people’s works for different reasons. Think about all the times you’ve quoted people from the movies, on TV, or even from a good line in a book.

For example, nearly everyone has heard of Franklin D. Roosevelt’s Presidential Inaugural Address in 1933 when he said, "The only thing we have to fear is fear itself." Or John F. Kennedy’s Presidential Inaugural Address in 1961 when he said, "Ask not what your country can do for you - ask what you can do for your country." And one of the most famous quotes in English literature comes from Charles Dickens’ A Tale of Two Cities, which starts out by saying: "It was the best of times, it was the worst of times; it was the age of wisdom, it was the age of foolishness; it was the epoch of belief, it was the epoch of incredulity."

However, when quoting another person and/or using his or her copyrighted work, one must be very careful not to commit copyright infringement. Copyright infringement occurs when an individual illegally uses another person’s copyrighted work.

In short, copyright laws give the owner of a copyrighted work, such as a book, movie, article, drawing, etc. a lot of protections. But there are certain exceptions where others can use a copyrighted work without the owner’s consent. One of the biggest exceptions is called the "fair use" doctrine, which we’ll explore in this article.

In this article, we’ll take a general look at the "fair use doctrine," learn about the federal statute that guides fair use, take a look at the 4 factor fair use balancing test, and review fair use of works on the internet with an example.

Next, let’s take a general look at the "fair use" doctrine.

Fair Use Overview

Where should we start in understanding the "fair use" of copyrighted works? Well, like most legal analyses, we want to first see if the U.S. Constitution has anything to say about the topic. If you explore the U.S. Constitution, you’ll find out that it does discuss issues associated with copyright law, which "fair use" is derived from.

Article 1, Section 8, Clause 8 of the United States Constitution states that:
Congress shall have the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
This clause is sometimes referred to as the Copyright Clause or Copyright and Patent clause. This is because the clause talks about "authors" and "writings," which deal with copyrights. (The clause also talks about "inventors" and "discoveries," which deal with patents.) So, copyright laws are based on federal law, as opposed to state law, because the U.S. Constitution actually grants Congress the power to regulate copyright law.

In short, copyright law protects how an author, i.e. creator, made or expressed him or herself. And copyright law gives the owners of copyrighted works lots of protections, but these protections are not unlimited. (In fact, one of the biggest limitations on copyrighted works is known as the "fair use" doctrine.

So, what exactly is the "fair use" doctrine and how does it work with copyrighted materials? The "fair use" doctrine arises when a copyright owner sues a person who may have committed copyright infringement.

The copyright owner, i.e. plaintiff, must show prima facie evidence (i.e. basic evidence) that the potential copyright infringer, i.e. defendant, committed copyright infringement. If the plaintiff shows this prima facie evidence, then the defendant could use the "fair use" doctrine as a defense to copyright infringement. In other words, "fair use" means that an individual can use the copyrighted material of another individual without the copyright owner’s permission for certain things.

For example, there are many different situations where a person can "fairly" use the copyrighted work of another without getting the owner’s consent. Under the Copyright Act of 1976, 17 U.S.C. § 107, "fair use" includes the use of a copyrighted work for such purposes as:
  • News reporting
  • Criticism
  • Comments
  • Teaching
  • Scholarship
  • Research
However, in order to determine what constitutes "fair use" for each particular situation, a 4-factor balancing test was established. The 4-factor balancing test looks at:
  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
Courts can also consider other factors, but these are the factors that Congress created based on prior judge-made laws.

Next, we’ll explore these 4 factors in some more detail.

Fair Use – 4 Factor Balancing Test

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.

Fair Use Example

As we’ve previously mentioned, the main test to determine what constitutes "fair use" is the 4-factor balancing test. In other words, there are no hard and fast rules. Courts must balance at least 4 different factors to determine whether the use of copyrighted material by someone other than the owner was done "fairly." The test is very fact specific and a small change in the facts could change the outcome. Let’s go over an example to see how this might work.

Fair Use Example

Assume Henry just wrote a brand new novel called, The Future of Outer Space. Henry spent 2 years of his life writing this novel and gave up his job to do so (while eating a lot of cheap Roman Noodle soup to get by). After completing the novel, Henry found a writing agent, signed a book contract with a local publishing company, and posted a few excerpts of the novel on his website on the internet. Henry then when out on the road and traveled to coffee shops, book clubs, and all kinds of other events throughout the United States to promote his new book. Henry even had to pay for some of the traveling expenses. People finally began to take notice of Henry’s novel, and within a few months The Future of Outer Space made the NY Times Bestseller List. Henry was finally starting to make some money.

Lots of people liked Henry’s ideas about outer space and many people began quoting or paraphrasing different parts of the book on the news, radio, in classrooms, and all kinds of other settings. Many people just copied and pasted Harry’s book excepts from his website. Ok, STOP!

As soon as people start quoting and copying and pasting Henry’s material, would this be allowed under copyright law? In other words, could Henry sue someone who quoted and/or copied and pasted his material? Answer: It depends.

It depends on how the court would view the 4 factors in the balancing test. So, a separate legal analysis would have to be applied for each and every person that used Henry’s material from his novel if Henry sued everyone that used his material.

In the real world, Henry would likely not sue anyone, unless that individual was making money, gaining notoriety, or somehow benefiting from all of Henry’s hard work without Henry getting any credit. For example, assume that Bill innocently believed that he could copy and past some of the excerpts from Henry’s book on Bill’s website. Then, because of the excepts Bill put on his website he was able to get a lot of web traffic and began to make more money off of advertising. Here, Henry could sue Bill for copyright infringement with possible damages of up to $150,000 per violation! So, as you can see, people should be very cautious about using copyrighted materials without the owner’s consent.

Finally, let’s wrap up this article with some main thoughts to keep in mind.


In this article, we took a general look at fair use, the 4-factor "fair use" balancing test, and an example dealing with fair use. As you can see, fair use can be somewhat of a grey area in the law, which changes based upon the specific circumstances. So, keep in mind that if you plan to use the copyrighted work of another, it pays to see if it clearly falls within the fair use doctrine prior to using the work.

Also, remember that fair use is a defense to copyright infringement. As long as the copyright owner does not take any action against you, nothing will likely happen. However, if a copyright owner finds out that you’re using his or her work without his or her permission, the copyright owner could threaten to or sue you for copyright infringement.

In court, the copyright owner would have to show prima facie evidence (i.e. a basic level of evidence) that you committed copyright infringement. If the copyright owner can show such prima facie evidence, then you could attempt to use the "fair use" doctrine as a defense to copyright infringement.

Finally, as previously stated, it’s generally best to obtain written permission from the copyright owner prior to using his or her copyrighted work.

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