By Michael Small
The Copyright Office defines Copyright as the exclusive right for a person (mainly the author) to reproduce, publish, sell, or claim ownership of his or her original works of creation under Section 106 of the Copyright Act of 1976. The copyright symbol (©) identifies the work as protected to the copyright owner and the audience. This intellectual property right grants protection to the author’s creative works such as literature, music, drama, arts, or architecture upon the creation of his or her product in a fixed media. This protection remains valid until the owner’s death plus 70 years. Afterwards, the work becomes public domain, which allows for anyone to use the work for any purpose. However, to prevent potential conflict with the First Amendment’s grant of freedom of speech, religion, and the press, the court created the fair use doctrine as a check and balance to copyright’s power.
The Fair Use Doctrine is a declaration that allows the usage of copyrighted works without permission from the author under certain conditions. If the court determines fair use, then a court will void a copyright infringement and dismiss the case. The fair use doctrine applies mainly to transformative works, which either comment upon, criticize or make a parody out of the existing work. It also provides protection for limited usage of copyrighted works, such as using the material with intent for educating, broadcasting in news, or for researching purposes. The court weighs four factors in a fair use determination/assessment:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
Another set of guidelines monitor the usage of copyright material in education. For fair use to apply in an educational setting, the usage must take place in a classroom setting or similar area of instruction, occur face-to-face with the instructor in person, and take place in a non-profit educational institute. Therefore, the fair use defense protects copyrighted works displayed or performed in a classroom setting. However, it is prohibited to distribute copyrighted work unless the first sale took place between the teacher and publisher/owner of the copyrighted good.
Purpose and character of the use
The intent to use a copyrighted work by anyone other than the owner is the first determinant. This factor takes into consideration several aspects: whether the user of the work intended to receive a profit; if it was distributed for free or sold in commerce; if it was derived/transformed by changing the meaning of the original work; or if value was changed by adding in different information, aesthetics, and point of view. The more a work comments/critiques or radically transforms and differentiates itself from the original work, the more viable the fair use defense. For example, in Campbell v. Acuff-Rose Music, Inc., Campbell sued the 2 Live Crew over unauthorized usage of Roy Orbison’s “Oh, Pretty Woman,” in the defendant’s song, “Pretty Woman.” Although the Defendant frequently used the ‘heart’ of the song “pretty woman,” the court ruled in favor of Acuff-Rose Music Inc. The court classified the Defendant’s song as a parody of “Oh, Pretty Woman.” Specifically, the court found that 2 Live Crew took a more comical, raunchier approach to the song, changing lyrics beyond the first few lines, and mocking the original version in its context. Therefore, the court found the work protectable under the fair use defense as a parody, despite its commercial nature.
Nature of the copyrighted work
The court also considers the type of information that the individual copies for fair use. In this context, a court will likely find that information that is factual in nature, such as biographies, scientific information, and research is less likely to be infringing compared to more creative, original works like art, music, and entertainment. In addition, whether the author publicized the work or not is also added in as a weighing factor, with the usage of unpublished work being a higher risk of copyright infringement due to the author’s right for first to publicize.
Amount and sustainability of work taken
The amount of the copyrighted work that one takes from the creator also plays a factor in determining fair use. Small portions of a work, such as a quote or a few seconds of a video, are generally considered fair use, unless argued otherwise. The larger the proportions of the taken work, the more likely a court will find that someone infringed a work. The type of media (music, painting, etc.) in which infringement took place all have different limits of toleration for used content, most of which can be argued for or against proof of infringement, depending on the case. If the portion of a taken work is minimal in comparison to the overall work, a copyright case could be dismissed as de minimis. For example, a developer copying 30 characters from a work that contains 70 pages worth of code would be de minimis. However, if the portion used is from the ‘heart’ of the work, such as a major passage in the book or the chorus of music, it will be more likely that the material is infringing a copyright, regardless of the quantity taken.
Impact on the market for the owner
Similar to a trademark, judging how much of an impact a good produced outside of the owner’s jurisdiction may have an effect on the market the owner does business in. This is the last major factor that contributes to judging whether infringement took place. If the reproduced good is sold outside of the owner’s knowledge for profit, it is very likely that infringement took place because the owner is deprived of the profit earned from the sale outside his jurisdiction. This infringement remains consistent even if the copyright owner had not considered making the good in a different media and market of the original work. For example, a painting based off a photograph may be at risk for infringing the photographer’s rights because the photograph’s existence revealed a potential market for future painters.
A judge or jury’s opinion will vary from case to case because the determination for copyright infringement is based off subjective analysis of the four factors. The most common factor for this judgement is whether the infringer takes the copyrighted material in good or bad faith. Courts consider whether the individual takes a work with the knowledge that someone else created it or uses a work when the copyright holder directly denied the individual permission to use the work. In the above scenarios, the court would likely find infringement in bad faith.
In contrast, when an individual acknowledges the source material (citations, references, etc.) or provides a visible disclaimer to the ownership of the copyrighted work that he/she uses, a court will likely find infringement in good faith, which may positively impact the jury’s determination of fair use. However, the judgment between the value of faith is subject to change depending on the context of the lawsuit and the morality of the judge and jury.
Fair use outside of copyright
Fair use is not exclusive to copyright. In commerce, a company can use another trademark without permission from the owner under the Lanham Act. The Lanham Act outlines the following conditions for fair use:
- Any fair use, including a nominative or descriptive fair use, or facilitation of such fair use, of a famous mark by another person other than as a designation of source for the person’s own goods or services, including use in connection with—
- advertising or promotion that permits consumers to compare goods or services; or
- identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.
- All forms of news reporting and news commentary.
- Any noncommercial use of a mark.
Therefore, a company using another company’s mark is fair use if the infringer uses the taken mark for comparative advertising with their own mark, commentary, news reporting, or parody, similar to the fair use doctrine in copyright.
For patents, a limited fair use is applicable only for pharmaceutical patents under the Hatch-Waxman exemption. Originally known as the Drug Price Competition and Patent Term Restoration Act of 1984, this Act proclaims that there is no infringement for patents that are government regulated generic drugs. The court ruling of Merck KGaA v. Integra Lifesciences I, Ltd further extends this protection to preclinical studies such as pharmaceutical research and experimentation using said drugs. A court will likely find that usage of pharmaceutical patents in these conditions by inventors or companies are fair use and thus exempt from patent litigation.
Degradation of fair use concern
There is concern that the term and usage of fair use is misrepresented from its original use as free speech to an excuse for infringement, especially in the court system. For example, in Cariou v. Prince, the district court found that the defendant’s artwork infringed on the plaintiff’s copyright because the work did not comment upon the Plaintiff’s book of photographs, causing a major backlash in the art community regarding transformed works. The major concern found in the backlash focused on arguing what degree an artist’s work would have to be modified to comment upon the original copyrighted material. The Second Circuit eventually repealed the decision, holding in favor of Prince because the initial reading neglected measuring the transformative degree the defendant’s work went through in comparison to the plaintiff’s photographs. Despite the reversal of the initial court’s decision, it did not change the fact that the district court ignored the transformative nature of Prince’s work when considering the fair use defense, exposing evidence of the fair use defense’s degradation in the court system.
Copyright’s main purpose is to promote the progress of science and useful arts through granting owners exclusive control of their works. The fair use doctrine offers a challenge to copyright’s intent by questioning whether the promotion is best served by allowing the use of copyrighted material rather than preventing it. The public views both sides with a negative reception. Some argue that copyright gives too much control to copyright owners, with its creators restricting the usage of their work to avoid criticism or negative reception affecting their productivity. Others argue that fair use is nothing more than an excuse for infringement, allowing anyone to take credit from the work of others will little to no drawback. Despite the negative public view on both intellectual property rights, both views share the same purpose of benefitting the public and promoting the arts and sciences. The dispute between copyright and the fair use doctrine is a reoccurring conflict of check and balances between protection of property and freedom of expression. By debating these intellectual property rights in the courts, there is both innovation and further amendments to the legal system regarding copyright and fair use, along with an introduction to new creative works that challenge their validity. Therefore, regardless of the outcome, the fair use defense is key to allow both businesses and the public to benefit from the use of a copyrighted work.
 See U.S. Copyright Office, Circular 1, Copyright Basics, 1 (May 2012).
 17 U.S.C. § 107.
 See 17 U.S.C. § 110.
 Once a copyrighted good is sold to a consumer, the consumer is free to sell, display, perform, or dispose of the copy without the copyright owner’s permission. See 17 U.S.C. § 109.
 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
 See Deborah R. Gerhardt and Diane K. Kjervik, Protect Your Right to Write Again: Tips for Assuring that Your Publication Agreement is a Comfortable Fit, 12 J. Nursing L., 124, 124 (2008).
 See Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992) (holding that defendant’s sculpture, which was based on plaintiff’s photograph, infringed the plaintiff’s rights, as the photograph’s existence marked a potential market for sculptures, despite the plaintiff’s use of photography).
 Nominative fair use is identified as the following: The use must accurately refer to the owner of the trademark or the goods or services sold under the trademark; The use must not imply any endorsement or sponsorship by the trademark owner; There should be no easier way to refer to the owner or its products; and Only so much of the trademark can be used as is needed to identify the trademark owner and no more. See Chad J. Doellinger, Nominative Fair Use: Jardine and the Demise of a Doctrine, 1 Nw. J. Tech. & Intell. Prop. 66 (2003).
 See 15 U.S.C. § 1125.
 See 35 U.S.C. § 271 (e)(1) (“It shall not be an act of infringement to make, use, offer to sell, or sell within the United States or import into the United States a patented invention … solely for uses reasonably related to the development and submission of information under a Federal law which regulates the manufacture, use, or sale of drugs or veterinary biological products.”).
 See Merck KGaA v. Integra Lifesciences I, Ltd., 125 S. Ct. 2372 (2005) (noting that Section 271(e)(1) does not exclude experimentation on drugs under FDA submission or use of patented compounds for experimenting on drugs).
 See Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).
 See Cariou v. Prince, 714 F.3d at 704 (discussing the decision of the lower court).
 Id. at 707-08.
 U.S. Const. art. 1, § 8, cl. 8.