Q.

What are the four factors to consider in deciding whether a use of copyrighted
material is a fair use?
ANS:

1. Purpose and Character of the Use

The first fair use factor refers mainly to the function for which the copied material is being used.
Since copyright law favors the encouragement of scholarship, research, education, and
commentary, a judge is more likely to make a determination of fair use if the defendant's use is
noncommercial, educational, scientific, or historical. However, an educational or scientific use
that is for commercial purposes may not be excused by the fair use doctrine.

For example, copying a scientist's statements in a cigarette advertisement or the large scale
videotaping of educational programming is not considered fair use. Similarly, the fact that a use
is not for profit will not necessarily excuse an infringing use. However, copying a famous
painting in an academic journal about aesthetics is more likely to qualify as fair use.

In 1995, this first fair use factor was elevated to the most important factor by the U.S. Supreme
Court. What was important, stated the high court, was that the purpose and character of the use
was transformative; that the alleged infringement made a new statement using the work.

2. Nature of the Copyrighted Work

The second factor in the fair use determination is the nature of the work that is being copied. For
example, a court will ordinarily consider whether the work being copied is informational or
entertaining in nature. A judge is more likely to find a determination of fair use if material is
copied from a factual work, such as a biography, than from a fictional work, such as a novel.

As the Supreme Court stated in Sony Corp. of America v. Universal City Studios, Inc., "copying
a news broadcast may have a stronger claim to fair use than copying a motion picture." Why?
Because copying from informational works such as scholarly, scientific, or news journals
encourages the free spread of ideas and encourages the creation of new scientific or educational
works, all of which benefit the public.

In addition, the court will consider whether the work that is copied is published or unpublished.
The scope of fair use is narrower with respect to unpublished works because of the author's right
to control the first public appearance of his or her expression. For example, in the case of
Salinger v. Random House, a biographer paraphrased portions of letters written by J.D. Salinger.
Although the public could read these letters at a university library, Mr. Salinger had never
authorized reproduction or publication of the letters. Despite the scholarly purpose of the
proposed Salinger biography, the court would not permit the unauthorized paraphrasing of Mr.
Salinger's unpublished letters as a fair use.

3. Amount of Copyrighted Work Used

How much of the original work does the infringer take? One sentence of a book, or an entire
chapter? A five-second clip of a film, or the whole movie? This factor will also weigh on a
judge's mind.

In one case, a court permitted a biographer to quote from six unpublished letters and ten
unpublished journal entries of the late novelist Richard Wright. One factor that weighed in favor
of the biographer was the amount of the portions that were used. The court determined that no
more than 1% of Mr. Wright's unpublished letters and journal were copied.

When considering the amount and substantiality of the portion taken, the court looks at not just
the quantity of the material but the quality of the material taken.

For example, the copying of one minute and 15 seconds of a 72-minute Charlie Chaplin film was
considered substantial and was not permitted as a fair use. In rare cases, copying of a complete
work may be considered as a fair use. For example, the Supreme Court in the Sony case excused
the off-the-air copying of complete television programs.

4. Effect of the Use on the Potential Market for the Work

The fourth factor in a fair-use determination is the effect of the use on the potential market for
the work that was copied. Consideration of this factor is intended to strike a balance between the
benefit that the public will derive if the use is permitted and the personal gain that the copyright
owner will receive if the use is denied.

A judge must consider the effect on the potential market for the copyrighted work. This
consideration goes beyond the past intentions of the author or the means by which the author is
currently exploiting the work.

For example, in a case concerning a photograph that was adapted to a wood sculpture, the court
recognized the existence of a market for new versions or new uses of the photograph, and
determined that the unauthorized use of the photographic image undermined the potential
market.

Some uses are not considered to undermine the potential market. Copying a magazine cover for
purposes of a comparative advertisement is a fair use because the comparative advertisement
does not undermine the sales or need for the featured magazine. No customer would not buy the
magazine merely because of the advertisement. Similarly, it was the lack of market damage in
the Sony case that convinced the Supreme Court to permit off-air videotaping.