Statutory uses and factors

• Author: Robert A. Gorman
• Profession: University of Virginia School of Law
• Pages: 94

In the 1976 Copyright Act, Congress took the bold step of incorporating the fair use doctrine into the statute, of setting forth a number of illustrative favored uses and, most important, of delineating four factors that courts are to consider (possibly along with other factors as well) when passing upon a fair use defense. Section 107 provides:

Notwithstanding the provisions of section 106, the 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\*) the purpto- -U character of t"lh UI, i--luding whetherC UChLL 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 drafters of section 107 regarded it as endorsing the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change.... [Tlhe courts must be free to adapt the doctrine to particular situations on a case-by-case basis.

Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.148.

The Supreme Court has held that "fair use is a mixed question of law and fact."149.

If a district court has found facts sufficient to evaluate each of the statutory factors, the court of appeals may determi.., without remand, whether the defendant has made a fair use of copyrighted material as a matter of law. If the use is commercial rather than nonprofit, it is presumed to be unfair and to have a likely adverse impact on the market for the plaintiff's work; the burden is on the defendant to prove otherwise.150.

The opening paragraph of section 107 sets forth a number of illustrative uses that may fall within the fair use privilege. These uses provide only a rough guide for a court's conclusions. Curiously, the only two decisions of the Supreme Court that const ue section 107 do...