Section 16 Fair Use

LibraryIntellectual Prop 2004

“Fair use” of a copyrighted work is not an infringement of copyright. 17 U.S.C. § 107. But what is fair use? 17 U.S.C. § 107 attempts to define the term in two ways. First, it states that fair use includes copying for purposes of “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Does this mean that all copying for purposes of news reporting or teaching, for example, is fair use? No, it does not. Would it be permissible for a school district, for example, to buy one copy of a textbook and then print several hundred copies for the use of its students because such a use was for teaching? No, of course not. See, e.g., Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983).

17 U.S.C. § 107 lists four factors to be considered in determining whether the use made of a work is “fair.” These factors are:

  1. The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
  1. The nature of the copyrighted work
  1. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  1. The effect of the use on the potential market for or value of the copyrighted work

A court can consider other factors in determining if a use is a fair use, but the four factors listed above are “especially relevant” to the determination. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985). The Supreme Court of the United States found two of the four factors present in Harper & Row and held that the use (the premature publication of portions of former President Ford’s memoirs) was copyright infringement and not a fair use. The nature of the copyrighted work (it was an unpublished work before the infringement) was thought by the Court to be a key (although not a determinative) factor mitigating against a finding of fair use. The Court stated that the fourth factor, the effect of the use on the potential market, could be determinative. If one could only show, the Court stated, that the widespread practice of the challenged use would adversely affect the potential market for the copyrighted work, then the defense of fair use would be negated. Id. at 568.

Thus, the effect of the use on the potential market for the copyrighted work should always be kept in mind in determining whether a use is “fair.” In the textbook example used above, the use of multiple copies by a school district would not be a fair use because it would, if widespread, destroy the market for the copyrighted work.

The first fair use factor, the purpose and...

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