The Fair Use Doctrine Revisited: Part One in a Three-Part Series of Columns

Posted in: IP Law

On January 28, several members of the Judiciary Committee of the U.S. House of Representatives held a hearing on the copyright doctrine of fair use. The panel heard arguments from witnesses for and against current limitations on U.S. copyright protections as part of the Committee’s greater objective of reviewing the current state of copyright law in the United States.

The witnesses included the General Counsel for the Newspaper Association of America; a singer/songwriter and lecturer; several law professors; and a co-founder of the Organization for Transformative Works. Each witness discussed his or her perspective on the doctrine of fair use as it exists today in American jurisprudence and offered opinions as to whether legislative modifications were necessary to further the objectives of copyright.

In the first of this series of columns, I will provide background on the doctrine of fair use. In a subsequent column, I will summarize the arguments of each of the different witnesses before the Judiciary Committee, and finally I will argue—in accordance with some of the witnesses’ arguments—that, if anything, Congress should strengthen the doctrine of fair use in order to encourage innovation in furtherance of one of the purposes of copyright law.

The Doctrine of Fair Use

The U.S. Constitution gives Congress the authority “[t]o 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.” Pursuant to that authority, Congress has passed several Copyright Acts, the most recent one being the Copyright Act of 1976, which, though it has been amended several times, remains the primary source of copyright law in the United States today.

Prior to the passage of the Copyright Act of 1976, the doctrine of fair use existed only at common law. The codified version of the doctrine defines fair use as follows:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

When presented with a question of whether the use of a copyrighted work constitutes fair use, courts balance these four factors against each other. The presence or absence of any one factor is not dispositive to a finding of fair use; rather, all four factors must be considered in light of the specific facts at hand.

The Purpose and Character of the Use

The first factor—the purpose and character of the use—gets at whether the use in question promotes creativity and enriches the general public, or whether it merely supersedes the original for individual gain. A key inquiry in assessing this factor is the extent to which the use is transformative (that is, whether it alters the original with a “new expression, meaning, or message”). The U.S. Supreme Court held in Campbell v. Acuff-Rose Music that “[t]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”

For example, parodies are often considered fair use because they comment upon an original work and are usually substantially transformative. However, to constitute fair use, even parodies must meet the threshold question “whether a parodic character may reasonably be perceived.” That is, an infringing work may not simply parade as parody and benefit from the protection of fair use when no reasonable person would view it as a parody.

A second key inquiry for this factor is whether the use in question stands to gain commercially. Although a commercial purpose does not preclude the defense of fair use, it does weigh against a finding of fair use. In Fisher v. Dees, however, the U.S. Court of Appeals for the Ninth Circuit held that the parodic work in that case, despite being sold for a profit, served as “an editorial or social commentary” rather than “an attempt to capitalize financially on the [original work],” and thus was deemed fair use.

The Nature of the Copyrighted Work

The nature of the copyrighted work, the second statutory factor, concerns the value of the work used. If the original work closely resembles the type of work that is intended to benefit from copyright protections, then any use of that work is less likely to be fair. However, this factor has all but faded into disuse, as the U.S. Supreme Court has recognized that the availability of copyright protection should not depend on the quality or merit of a work. Indeed, while, in theory, creative works of fiction are “more” entitled to copyright protection than works assimilating objective facts, the latter are still entitled to copyright protection, albeit possibly less so than the former.

The Amount and Substantiality of the Use

This factor goes to the amount of the original work that is used: the more of the original work that is used, the less likely it is that use is deemed to be fair. In some cases, however, even substantial copying may constitute fair use if the new use is significantly transformative (see the first factor) or if the copied material is the minimum amount necessary for the intended use.

In other cases, however, even a small amount of copied material could fall outside the scope of what constitutes fair use if the small amount represents the “heart” of the material.

The Effect of Use on Potential Markets

Although the U.S. Supreme Court in Campbell rejected the proposition that the fourth factor—whether the use in question has an effect on the market of the original—is the most important factor in a fair use analysis, that inquiry remains important to consider. Courts tend to look at two different markets: (1) the original market where the original material is sold, and (2) a potential derivative market where the copyright owner might develop or license others to develop the material.

When assessing effect on the original market, courts look to whether the infringing use displaces demand for the original work. In some cases, the second work might criticize the original, thus hurting the original market. However, courts have distinguished harm due to criticism from harm due to displacement, with the former still being within the ambit of fair use.

A potential derivative market is the space for any “derivative works” of the original copyrighted material. The Copyright Act defines a derivative work as any work “based upon one or more preexisting works . . . consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship.” Although the potential market for derivative works is a broad concept, courts have attempted to find a balance “between the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied.”


In this column, I have outlined the basic principles behind the doctrine of fair use in American copyright law. In my next column in this series, I will describe the criticism this doctrine has faced and is currently facing, and I will argue that the legislature should, if anything, strengthen the doctrine of fair use to encourage creativity and innovation.

Posted in: IP Law