What is "Fair Use"?
The doctrine of fair use allows for the use of copyrighted works without the owner's permission. It protects limited uses of copyrighted works from being an infringement. The doctrine is, however, determined on a case-by-case basis, sometimes with contradictory results. Because of this uncertainty, fair use must be approached with caution. As a rule of thumb, if you are uncertain after reviewing the factors below whether a use is a fair use, assume it is not.
The Copyright Act provides that the "fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." Again, not all educational uses are fair use. Four factors are considered in determining whether the use of a work is a fair use:
- 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.
17 U.S.C. § 107. Courts decide fair use by weighing each factor individually and then determining which way the combination of factors tips. Each factor is discussed in detail below.
Purpose and Character of Use
Certain types of uses typically favor fair use, including teaching, research, scholarship, criticism, news reporting and parody. Also favoring fair use are uses that transform the copyrighted work for a new purpose, rather than pure copying. The Supreme Court has defined transformative use as a use that "adds something new, with a further purpose, or different character, altering the first with new expression, meaning or message." Other types of uses are typically viewed as not fair use, including situations where the user is engaged in commercial activity or is otherwise profiting from the use. Failure to give credit to the original author will often also weigh against fair use. Use of a copyrighted work for entertainment purposes is less likely to be deemed a fair use than educational purposes.
Nature of Copyrighted Work
Creative and fiction-based copyrighted works are given greater protection than works of a factual or non-fiction nature. Similarly, non-published works are given greater protection than published works.
Amount and Substantiality of Work Used
This factor measures both the quantitative and qualitative nature of the portion of the work used. The smaller the portion of a work used, the more likely the use is a fair use. Conversely, use of a substantial portion of a work or the heart of a work is less likely to be considered fair use. For example, use of three lines from a multi-volume work is likely fair use, but use of three lines from a six-line poem is less likely to be fair use.
Effect of Use on Market for Work
The Supreme Court has said to "negate fair use one need only show that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted works." Use of a work that replaces the need for others to purchase or license the work, especially if the work is easily purchased or licensed, will weigh against fair use. Making just a few copies, available to only a limited number of people, is likely to weigh in favor of fair use.
Do any "Safe Harbors" Exist for Educational Uses?
Congress incorporated into the copyright law numerous guidelines for educational institutions' use of copyrighted works ("Congressional Guidelines") to provide more certainty in determining fair use. These guidelines are not law, but courts give them deference. MCCCD endorses these guidelines as representing the minimum, not maximum, boundaries of fair use. The guidelines are discussed in detail under each media section, such as printed materials and music. Uses exceeding the scope of the guidelines may still qualify as fair use when analyzed under the four fair use factors.
In addition, numerous organizations have worked together towards creating additional guidelines for the use of copyrighted materials by nonprofit educational institutions. The guidelines on the use of copyrighted materials in the creation of multimedia works emerged from the Conference on Fair Use (CONFU) and are attached as further guidance. Although these guidelines were not formally adopted, a large number of organizations approved them. Again, these guidelines represent the minimum, not the maximum, scope of fair use.
Examples of Fair Use Cases in the Educational/Scholarly Context
Cases dealing with fair use in an educational or scholarly context are rare. Nonetheless, for discussion purposes only, a sampling of cases dealing with fair use in an educational or scholarly context is set forth below. Remember, however, fair use is determined on a case-by-case basis and the outcome of the analysis can be changed with a single fact. Thus, you should not view the below cases as examples of permitted (or prohibited) activities.
- Basic Books, Inc. v. Kinko's Graphics Corp., , 758 F. Supp. 1522 (S.D.N.Y. 1991). Plaintiff publishers brought suit against Kinko's, a for-profit copy shop, claiming its copying of excerpts from books for course packs violated their copyrights. The court rejected Kinko's fair use argument under both the four-factor analysis and the Congressional Guidelines. The decision explicitly did not consider copying performed by students, libraries, or on-campus copy shops. Purpose and Character of Use: This factor weighed against fair use. Although the use of the course packs was "no doubt" educational in the hands of students, the use in the hands of Kinko's employees was commercial. Kinko's directly profited from copying the works without paying permission fees. The court also rejected Kinko's argument that it was acting merely as an agent of the educational institutions. Nature of Work: The works were factual in nature, weighing in favor of fair use. Amount of Work Used: This factor weighed against fair use. The portions copied were critical parts of the books, since that was the likely reason the professors chose them for their classes. Moreover, the qualitative measure was significant as the passages copied ranged from 5% to 25% of the works and most often captured an entire chapter of a book. Effect on Market: This factor weighed against fair use. The court found the copying displaced the need for students to buy the texts from which the material was derived and thus competed directly with the copyright owner. It also made payment of permission fees on the materials unnecessary, further harming the market. Guidelines: The court also pointed to the Congressional Guidelines' prohibition against creating anthologies as weighing against fair use.
- Princeton Univ. Press v. Michigan Document Serv., Inc., ,99 F.3d 1381 (6th Cir. 1996). Under facts similar to the Kinko's case, the Sixth Circuit also found a commercial copy shop's copying for course packs was not fair use. Again, the challenged copying was by a commercial entity that directly profited from the use of the copyrighted work. The court, however, cautioned that "the issue is by no means free from doubt" that similar copying by students or professors would be fair use.
- Am. Geophysical Union et al. v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994). A group of publishers brought suit against Texaco based on the institutional, systematic copying of articles from scientific journals for researchers' personal libraries. The court expressly excluded copying for individual purposes from its decision. Purpose and Character of Use: This factor weighed against fair use. The copying was deemed an intermediate use because, although for research purposes, the ultimate goal of the research is to benefit a for-profit entity. The researchers most often copied the articles for archival use, rather than immediate use in research, making the use non-transformative. Nature of Work: This factor favored Texaco because the material was essentially factual in nature. Amount of Work Used: The court characterized each "work" as the articles in the journals, rather than the journals themselves. Thus the entire works were copied, weighing heavily against fair use. Effect on Market: The court focused on the market for licensing fees for copying individual articles in finding that Texaco's activities have an adverse effect upon the market.
- Warren Publishing Co. v. Spurlock, 645 F.Supp.2d 402 (2009). Defendant, Spurlock published a book-form biography and illustrated retrospective of movie monster artist Basil Gogos. Spurlock's book contained 160 reprints of Gogos's work, including 24 reproductions of Gogos's artwork taken from Plaintiff, Warren Publishing Co.'s copyrighted movie monster magazine covers. At summary judgment, the court ruled that Spurlock acted within fair use, based on its reasoning that the purpose and amount factors weighed strongly in Spurlock's favor. Central to the court's reasoning was the transformative nature of the use of the images in a biographical compilation. The court considered Spurlock's purpose to weigh in favor of fair use even though the images were reproduced in a commercial product. Also significant was the court's determination that the amount of the work used was based on an entire magazine issue rather than its cover image.
- Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006). Dorling Kindersley (DK) published a comprehensive "coffee table" book documenting the thirty-year history of the famous rock band, the Grateful Dead. The book included seven copies of old concert posters in which the plaintiff, Bill Graham Archives (BGA), owned the copyrights. The court found that DK's use of the posters was within the limits of fair use. In this case, the court ruled that using copied artworks in a reduced size may be fair use so long as the use is transformative and not for purposes of exploiting the creative nature of the copied works. Even when the full work is reproduced, it can still be fair use if the amount used was necessary to further the purpose of the fair use.
- National Center for Jewish Film v. Riverside Films LLC, 2012 WL 4052111 (C.D.Cal. Sept. 14, 2012). Defendant, Riverside Films created a documentary about a 19th Century Yiddish author that examined the 150 years of Jewish history using clips from four films copyrighted by the plaintiff. The court ruled that the use of plaintiff's films was a fair use because it added and transformed the original films through editing and commentary. The court considered bad faith, and it is worth noting that while bad faith is not a statutory factor in the determination of fair use, the bad faith or good faith of the user can be an important consideration in swaying the court for or against a finding of fair use.
- SOFA Entertainment, Inc. v. Dodger Productions, Inc., 2013 WL 1004610, (9th Cir. 2013). Defendant, Dodger Productions used a seven-second clip, owned by SOFA Entertainment, of Ed Sullivan's introduction of the Four Seasons on The Ed Sullivan Show in its musical Jersey Boys. The court ruled that the defendant's use of a clip from plaintiff's work was fair use, particularly because it not only did not harm the plaintiff's copyright but also because society's enjoyment of Dodger's creative endeavor was enhanced with its inclusion.
- Cariou v. Prince, _ F.3d _ (2d Cir. 2013). Plaintiff Patrick Cariou published a book of photographs of Rastafarians and landscapes taken in Jamaica. Defendant Richard Prince utilized entire images or as well as portions of Cariou's photographs in 28 paintings, many of which were shown in the Gagosian Gallery. The court held that Prince's works made fair use of Cariou's photographs. Appropriation art that utilizes portions of or entire works created by others might be fair use if they are changed to create a new expression or communicate a different result.
- Authors Guild, Inc. v. HathiTrust, 2012 WL 4808939 (S.D.N.Y. Oct. 10, 2012). A number of university libraries entered into agreements with Google under which Google would digitize works in the libraries' collections and provide them with digital copies. Many of those libraries deposited the digital copies with the HathiTrust Digital Library. HathiTrust displayed in full only those books that were in the public domain or for which the copyright owner had authorized use. For protected works, HathiTrust provided a full-text search that only showed the page numbers on which a term was found and the number of times the term appeared on each page. The court ruled that the defendants' use of the works constituted fair use. Digitizing and making available works in a limited capacity can be lawful under rigorously controlled conditions, especially when the use is transformative and specifically for use by scholars and print-disabled persons. This decision is currently on appeal.
- Cambridge University Press v. Becker, 863 F.Supp.2d 1190 (N.D.Ga 2012). Plaintiffs Cambridge University Press, Sage Publications and Oxford University Press sued officials at Georgia State University ("GSU") for copyright infringement. The publishers' complaint arose from Georgia State's practice of allowing faculty to use university networks and university library E-reserves systems to copy and distribute book excerpts to students without paying licensing fees. Officials for GSU, a public university, claimed that the creation and use of the unlicensed copies were allowable pursuant to the fair use doctrine, and therefore not copyright infringement. The court rejected all but five of 75 claims that the Georgia State University (GSU) Library's system of e-reserves infringed copyrights owned by Cambridge University Press, Oxford University Press, and Sage Publications. This is a case of first impression and it will strongly influence further judicial considerations of the issue. This case will most likely go up for appeal.
Conducting a Fair Use Analysis
The Fair Use checklist below can be used to assist you when conducting a fair use analysis. Fair use is very fact- and context-dependent. We recommend contacting MCCCD's general counsel for further input after you have reviewed this checklist if you are in any doubt. This checklist can help you organize your thoughts, but it DOES NOT tell you if a proposed use is fair or not and is not a substitute for legal advice.
Please note that no single factor is decisive of fair use, and on any given factor, you may find that some aspects of your proposed use fall in the "favors fair use" column, while others simultaneously "weigh against" fair use. There also may be other relevant considerations that do not appear in this checklist. Many considerations are relevant, and only by looking at all of the facts, across all the issues, can you make a reasonable estimation about whether your use is fair or not.
Fair Use Checklist
Page Updated 05/20/14