Appropriation and 'Fair Use'

The fair-use defense is built into copyright law to allow creative people to build on others’ work without having to obtain permission.  This defense is complicated because the court is required to consider four separate factors on a case-by-case basis to decide whether a particular use is fair.

Despite the lack of clear instructions on how to compare these factors, courts usually rely most on the first factor (“the purpose and character of the use”) and the fourth factor (“the effect of the use upon the potential market for or value of the copyright”).

The first and fourth factors, and some discussion of how courts evaluate each one, are outlined below:

“The purpose and character of the use.”  Copyright law specifically grants more leeway to nonprofit or educational uses, but even commercial uses can be fair. One of the key questions that artists will usually face is whether their work is transformative.  “Transformative” means more than simply taking another piece of work and casting it in a new medium; it requires using it for a different purpose or to view the original in a different light. Parody has often proven to be a successful fair-use defense, and it requires a critique of the specific, original work – use of the work as a more general satire receives less protection under the fair-use test.

“The effect of the use upon the potential market for or value of the copyrighted work.”  One question that courts ask is whether the consumer audience will substitute the new work for the original. If not, the use may be fair.  Another that courts will ask is whether this sort of copying harms the original artist’s ability to license the work.  Bear in mind that certain kinds of harm to the market for the original can still be fair, like the reduction in sales that may result from a scathing criticism or parody.

via http://www.onlineartrights.org/issues/sampling-and-appropriation/basics