7.2 Fair use and transformative works

Fair use is a crucial legal principle that allows limited use of copyrighted material without permission. It balances the interests of copyright owners with the public's need for wider distribution and use of creative works. The doctrine is determined case-by-case using four main factors.

Transformative use is key in fair use analysis. It involves altering the original work's message, context, or purpose significantly. Transformative uses are more likely to be considered fair use as they promote creativity and enrich public knowledge by adding new expression or meaning.

Fair use doctrine

• The fair use doctrine is a legal principle that allows limited use of copyrighted material without permission from the rights holder
• It aims to balance the interests of copyright owners with the public interest in the wider distribution and use of creative works
• Fair use is determined on a case-by-case basis by considering four main factors

Four factors of fair use

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• Purpose and character of the use (commercial vs non-profit, transformative vs derivative)
• Nature of the copyrighted work (factual vs creative, published vs unpublished)
• Amount and substantiality of the portion used in relation to the whole work
• Effect of the use upon the potential market for or value of the original work

Purpose and character of use

• Examines whether the use is commercial or non-profit educational
• Considers if the use is transformative, adding new meaning or expression to the original
• Non-profit educational uses are more likely to be considered fair use
• Transformative uses that repurpose or add new insights to the original are favored

Nature of copyrighted work

• Assesses whether the original work is factual or creative in nature
• Factual works (news articles, historical accounts) receive less protection than creative works (novels, films)
• Published works are more likely to be considered fair use than unpublished works
• Use of factual portions of a work is more likely to be fair than using creative expressions

Amount and substantiality used

• Analyzes both the quantity and quality of the portion used in relation to the whole work
• Using a smaller portion of the original work is more likely to be considered fair use
• However, even using a small portion can be infringement if it constitutes the "heart" of the work
• Courts consider whether the amount used is reasonable and necessary for the purpose

Effect on potential market

• Examines the impact of the use on the potential market or value of the original work
• Uses that serve as a substitute for the original and deprive the owner of revenue are less likely to be fair
• Criticism, parody, or transformative uses are less likely to have a negative market effect
• Courts consider whether the use could potentially become widespread and impact the market

Transformative use

• Transformative use is a key concept in fair use analysis, focusing on whether the use adds new expression, meaning, or insight to the original work
• It involves altering the original work's message, context, or purpose in a significant way
• Transformative uses are more likely to be considered fair use, as they further the goals of copyright law in promoting creativity and enriching public knowledge

Altering original work's meaning

• Transformative use often involves changing the meaning or message of the original work
• This can be achieved by using the work in a different context, medium, or for a new purpose
• Examples include using a song in a film soundtrack to convey a different mood or critiquing a political speech by juxtaposing it with contrasting imagery

Adding new expression or meaning

• Transformative uses add new creative expression, insights, or commentary to the original work
• This can involve combining the original with new material, using it as a starting point for a new creation, or providing a fresh perspective on the work
• Examples include creating a collage that incorporates elements of an artwork or writing a critical analysis of a literary text

Parody vs satire

• Parody and satire are two forms of transformative use that are often protected under fair use
• Parody directly mimics and comments on the original work itself, using humor or criticism to expose its flaws or absurdities
• Satire, on the other hand, uses the original work to comment on broader social or political issues, not directly targeting the work itself
• Courts have generally been more protective of parody as a transformative fair use than satire

Transformative use examples

• Google Books project, which scans and indexes book content for search purposes (Authors Guild v. Google)
• Artwork incorporating photographs to comment on consumerism and popular culture (Cariou v. Prince)
• Fan-made Harry Potter encyclopedia providing additional insights and analysis (Warner Bros. v. RDR Books)
• Parody rap song using elements of Roy Orbison's "Oh, Pretty Woman" (Campbell v. Acuff-Rose Music)

Fair use in journalism

• Journalists often rely on fair use to report the news, provide commentary, and critique works
• Fair use allows journalists to use copyrighted material in ways that inform the public and enrich public discourse
• However, journalists must carefully consider the four factors of fair use and ensure their use is transformative and does not infringe on the rights of copyright holders

News reporting and commentary

• Journalists can use copyrighted material in news reporting and commentary under fair use
• This includes quoting from sources, reproducing images or video clips, and incorporating excerpts from documents
• The use should be limited to what is necessary to convey the news story or provide context for commentary
• Proper attribution to the original source is essential

Criticism and reviews

• Fair use allows journalists to use portions of copyrighted works for criticism and reviews
• This can include quoting from a book in a book review, showing clips from a film in a movie critique, or analyzing lyrics in a music review
• The use should be limited to what is necessary to support the critical analysis and not serve as a substitute for the original work
• Proper attribution and context are important to ensure the use is fair

Use of quotes and excerpts

• Journalists can use quotes and excerpts from copyrighted works under fair use
• The amount used should be reasonable and justified by the purpose of the reporting or commentary
• Quotes should be properly attributed to the original source and context should be provided
• Journalists should avoid using extensive quotes or excerpts that could substitute for the original work

Attribution and ethical considerations

• Proper attribution is essential when using copyrighted material under fair use in journalism
• Journalists should clearly identify the source of the material and provide context for its use
• Ethical considerations, such as respecting the integrity of the original work and not misrepresenting its meaning, are important in fair use
• Journalists should also consider the potential impact of their use on the rights and interests of the copyright holder

Limitations of fair use

• While fair use provides flexibility for using copyrighted material, it is not a blanket permission and has limitations
• Several factors can weigh against a finding of fair use and increase the risk of infringement

Commercial vs non-profit use

• Commercial uses of copyrighted material are less likely to be considered fair use than non-profit educational uses
• If the use is primarily intended for commercial gain, it may be harder to justify as fair use
• However, commercial uses can still be fair if they are sufficiently transformative and do not harm the market for the original work

Unpublished vs published works

• Unpublished works receive greater protection under copyright law than published works
• Using portions of unpublished works is less likely to be considered fair use, as it can interfere with the author's right to control the first publication
• However, if the use is highly transformative and serves a compelling public interest, it may still be fair

Fictional vs factual works

• Fictional works, such as novels and films, receive stronger copyright protection than factual works like news articles and historical accounts
• Using portions of fictional works is less likely to be fair use, especially if the use is not transformative
• Factual works have a thinner layer of copyright protection, and using facts and ideas from these works is more likely to be fair

Avoiding market substitution

• Fair use should not serve as a substitute for the original work in the market
• If the use could potentially replace sales or licensing of the original work, it is less likely to be fair
• Uses that are transformative and do not compete directly with the original in the market are more likely to be fair

Defending fair use claims

• When faced with a claim of copyright infringement, those relying on fair use can take steps to defend their use
• Demonstrating a good faith belief in fair use, documenting the transformative purpose, and considering all four factors can support a fair use defense

Good faith and reasonable belief

• Showing that the use was made in good faith and with a reasonable belief that it was fair can support a fair use defense
• This involves demonstrating an understanding of fair use principles and how they apply to the specific use
• Documenting the decision-making process and reasoning behind the use can help establish good faith

Documenting transformative purpose

• Clearly articulating and documenting the transformative purpose of the use is important in defending fair use claims
• This involves explaining how the use adds new expression, meaning, or insight to the original work
• Providing evidence of the transformative nature of the use, such as through commentary, criticism, or new creative expression, can support a fair use defense

Considering all four factors

• When defending fair use, it is important to consider and address all four factors in the analysis
• Demonstrating that the use aligns with the factors of purpose and character, nature of the work, amount used, and market effect can strengthen the defense
• Providing a balanced and reasoned analysis of the factors, rather than relying on a single factor, can help support fair use

Responding to cease-and-desist letters

• If a copyright holder sends a cease-and-desist letter alleging infringement, those relying on fair use can respond by asserting their fair use defense
• The response should explain the basis for the fair use claim, addressing the four factors and the transformative nature of the use
• It is important to be respectful and professional in the response while firmly asserting fair use rights
• Seeking legal advice from an attorney experienced in copyright and fair use can be helpful in crafting an appropriate response