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.
