Fair use is a doctrine in United States law that permits limited use of copyrighted material without permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing a defense to copyright infringement claims for certain limited uses that might otherwise be considered infringement. The U.S. "fair use doctrine" is generally broader than the "fair dealing" rights known in most countries that inherited English common law. The fair use right is a general exception that applies to all different kinds of uses with all types of works. In the U.S., fair use right/exception is based on a flexible proportionality test that examines the purpose of the use, the nature of the copyrighted work, the amount used, and the impact on the market of the original work.
The doctrine of "fair use" originated as a judicially created common law during the 18th and 19th centuries as a way of preventing copyright law from being too rigidly applied and "stifling the very creativity which [copyright] law is designed to foster."Nimmer on Copyright § 13.05, quoting Iowa State Research Foundation, Inc. v. American Broadcasting Companies, 621 F.2d 57 (2d Cir. 1980). Though originally a common law doctrine, it was enshrined in statutory law when the U.S. Congress passed the Copyright Act of 1976. The U.S. Supreme Court has issued several major decisions clarifying and reaffirming the fair use doctrine since the 1980s,Nimmer on Copyright § 13.05. the most recent being in the 2023 decision Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.
History The 1710 Statute of Anne, an act of the Parliament of Great Britain, created copyright law to replace a system of private ordering enforced by the Stationers' Company. The Statute of Anne did not provide for legal unauthorized use of material protected by copyright. In Gyles v Wilcox (1740), the Court of Chancery established the doctrine of "fair abridgement", which permitted unauthorized abridgement of copyrighted works under certain circumstances. Over time, this doctrine evolved into the modern concepts of fair use and fair dealing. Fair use was a common-law (i.e. created by judges as a legal precedent) doctrine in the U.S. until it was incorporated into the Copyright Act of 1976, .
The term "fair use" originated in the United States. Although related, the limitations and exceptions to copyright for teaching and library archiving in the U.S. are located in a different section of the statute. A similar-sounding principle, fair dealing, exists in some other common law jurisdictions but in fact it is more similar in principle to the enumerated exceptions found under civil law systems. Civil law jurisdictions have other limitations and exceptions to copyright.
In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in the 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation ("EFF"), the American Civil Liberties Union, the National Coalition Against Censorship, the American Library Association, numerous clinical programs at law schools, and others. The "Chilling Effects" archive was established in 2002 as a coalition of several law school clinics and the EFF to document the use of cease and desist letters. In 2006 Stanford University began an initiative called the "Fair Use Project" (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations.
U.S. fair use factors Examples of fair use in United States copyright law include commentary, criticism, news reporting, research, and scholarship, as well as parody and search engines. Fair use provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor test.
The U.S. Supreme Court has traditionally characterized fair use as an affirmative defense, but in Lenz v. Universal Music Corp. (2015)Lenz v. Universal Music Corp. , 801 F.3d 1126, 1133 (9th Cir. 2015). (the "dancing baby" case), the U.S. Court of Appeals for the Ninth Circuit concluded that fair use was not merely a defense to an infringement claim, but was an expressly authorized right, and an exception to the exclusive rights granted to the author of a creative work by copyright law: "Fair use is therefore distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright."
The four factors of analysis for fair use set forth above derive from the opinion of Joseph Story in Folsom v. Marsh, in which the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington in order to produce a separate two-volume work of his own. The court rejected the defendant's fair use defense with the following explanation:
The statutory fair use factors quoted above come from the Copyright Act of 1976, which is codified at . They were intended by Congress to clarify rather than to replace, the prior judge-made law. As Judge Pierre N. Leval has written, the statute does not "define or explain [fair use's] contours or objectives". While it "leav[es] open the possibility that other factors may bear on the question, the statute identifies none." That is, courts are entitled to consider other factors in addition to the four statutory factors.
1. Purpose and character of the use The first factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes". To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new.
In the 1841 copyright case Folsom v. Marsh, Justice Joseph Story wrote:
A key consideration in later fair use cases is the extent to which the use is transformative. In the 1994 decision Campbell v. Acuff-Rose Music Inc, the U.S. Supreme Court held that when the purpose of the use is transformative, this makes the first factor more likely to favor fair use. Before the Campbell decision, federal Judge Pierre Leval argued that transformativeness is central to the fair use analysis in his 1990 article, Toward a Fair Use Standard. Blanch v. Koons is another example of a fair use case that focused on transformativeness. In 2006, Jeff Koons used a photograph taken by commercial photographer Andrea Blanch in a collage painting. Koons appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. Koons prevailed in part because his use was found transformative under the first fair use factor.
The Campbell case also addressed the subfactor mentioned in the quotation above, "whether such use is of a commercial nature or is for nonprofit educational purposes". In an earlier case, Sony Corp. of America v. Universal City Studios, Inc., the Supreme Court had stated that "every commercial use of copyrighted material is presumptively ... unfair." In Campbell, the court clarified that this is not a "hard evidentiary presumption" and that even the tendency that commercial purpose will "weigh against a finding of fair use ... will vary with the context." The Campbell court held that hip-hop group 2 Live Crew's parody of the song "Oh, Pretty Woman" was fair use, even though the parody was sold for profit. Thus, having a commercial purpose does not preclude a use from being found fair, even though it makes it less likely.
Likewise, the noncommercial purpose of a use makes it more likely to be found a fair use, but it does not make it a fair use automatically. For instance, in L.A. Times v. Free Republic, the court found that the noncommercial use of Los Angeles Times content by the Free Republic website was not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for. Richard Story similarly ruled in Code Revision Commission and State of Georgia v. Public.Resource.Org, Inc. that despite the fact that it is a non-profit and did not sell the work, the service profited from its unauthorized publication of the Official Code of Georgia Annotated because of "the attention, recognition, and contributions" it received in association with the work.Judge Story's decision was reversed on appeal by the United States Court of Appeals for the Eleventh Circuit, which did not consider the question of fair use. , cert. granted, affirmed This was overruled by the Supreme Court of the United States in Georgia v. Public.Resource.Org, Inc., 590 U.S. 255 (2020).
Another factor is whether the use fulfills any of the preamble purposes, also mentioned in the legislation above, as these have been interpreted as "illustrative" of transformative use.
In determining that Prince's appropriation art could constitute fair use and that many of his works were transformative fair uses of Cariou's photographs, the Second Circuit in Cariou v. Prince, 714 F.3d 694 (2d. Cir. 2013) shed light on how transformative use is determined. "What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work." The district court's conclusion that Prince's work was not transformative is partly based on Prince's deposition testimony that he "do[es]n't really have a message", and that he was not "trying to create anything with a new meaning or a new message".Cariou v. Prince, 714 F.3d 694, 707 (2d. Cir. 2013). However, the artist's intended message "is not dispositive". Instead, the focus of the transformative use inquiry is how the artworks will "reasonably be perceived".
The transformativeness inquiry is a deceptively simple test to determine whether a new work has a different purpose and character from an original work. However, courts have not been consistent in deciding whether something is transformative. For instance, in Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th Cir. 2013), the court found that Green Day's use of Seltzer's copyrighted Scream Icon was transformative. The court held that Green Day's modifications to the original Scream Icon conveyed new information and aesthetics from the original piece.
Conversely, the Second Circuit came to the opposite conclusion in a similar situation in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d. Cir. 2021). In that case, the Warhol Foundation sought a declaratory judgment that Warhol's use of one of Goldsmith's celebrity photographs was fair use. The court held that Warhol's use was not transformative because Warhol merely imposed his own style on Goldsmith's photograph and retained the photograph's essential elements.
2. Nature of the copyrighted work
Although the Supreme Court has ruled that the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional.Warner Bros. and J. K. Rowling v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008)