Fair use
Fair use is a legal doctrine under U.S. copyright law that permits the limited use of copyrighted material without permission from the copyright holder in specific contexts, such as for education, criticism, or commentary. Codified in the Copyright Act of 1976, fair use allows individuals, including educators and critics, to utilize portions of copyrighted works without infringing on copyright, although the application of fair use is often determined on a case-by-case basis. Courts evaluate fair use using a four-factor test, examining the purpose of the use, the nature of the copyrighted work, the amount used relative to the whole, and the impact on the market value of the original. Transformative uses—those that add new expression or meaning—are typically favored under this doctrine, while mere adaptations generally do not qualify. Notably, the implications of fair use can vary widely, leading to legal disputes, as highlighted by the recent Supreme Court case involving Andy Warhol's artwork. Ultimately, fair use aims to balance the rights of creators with the public's interest in accessing and engaging with creative works, reflecting a complex interplay of rights and cultural expression.
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Fair use
Fair use is a doctrine codified in US copyright law that allows critics, teachers, students, and other individuals to use selections of copyrighted material in certain contexts without committing copyright infringement. The doctrine is loosely defined and has been interpreted in many different ways; however, fair use is generally considered to protect the use of limited amounts of copyrighted material for educational, critical, and some transformative purposes. Whether a work that borrows copyrighted material is protected under fair use is typically determined on a case-by-case basis, taking into account factors such as the work’s purpose and the amount of copyrighted material used.
Overview
Copyright law in the United States has evolved significantly over the years, introducing new protections for creators of copyrighted works as well as limitations to copyright. For decades, the doctrine of fair use existed in practice but was not officially part of US copyright law. Fair use was formally codified with the passage of the Copyright Act of 1976.
Section 107 of US copyright law defines "fair use" as the reproduction of copyrighted material for the purposes of commentary, criticism, education, and research, among others, and notes that the use of portions of copyrighted works for these purposes generally should not be considered copyright infringement. As these forms of use are not strictly defined, disputes regarding fair use are settled on a case-by-case basis. The law stipulates that when determining whether an instance of borrowing qualifies as fair use, a court must consider the following four factors, often called the "four-pronged test": (1) the purpose and character of the use of the copyrighted material, including whether it is for commercial or nonprofit purposes; (2) the nature of the copyrighted work, including whether it is fiction or nonfiction; (3) the proportion of the copyrighted material being used in relation to the original work as a whole; and (4) whether the use of the copyrighted material will affect the market value of the original work. There is no one "right" answer to any of these prongs; while use of copyrighted material is more likely to be deemed fair if it is not for commercial purposes, for example, or if only a portion of the original work is used, there have been several cases in which for-profit borrowing or the borrowing of a copyrighted work in its entirety has been declared fair use.
In practice, fair-use cases often focus on whether a work that borrows material from another work is transformative or merely derivative. Typically, the creator of a work retains all rights to create derivative works based on it, such as films or artwork. As such, a work that merely adapts a copyrighted work into another medium is generally not protected by fair use. However, if the work transforms and adds value to the original work for the purpose of criticism, commentary, or parody, it will generally be protected. For instance, an artist may use the image of a copyrighted product in a work of art that comments on the cultural norms that the product typically represents, and a music group may produce a song that parodies another song by changing the lyrics to express a message counter to the message of the original.
The effects of a work on the copyrighted work from which it borrows are also taken into consideration. In some cases, a work could harm the sales of the original work or prevent the creator of the original work from entering new markets. In such cases, courts typically find in favor of the creator of the original work, as fair use usually does not apply when a work containing copyrighted material serves to deprive the original creator of income or further opportunities. However, even in this respect there are exceptions. For example, the use of copyrighted material in a negative review of the original work is generally considered fair use, even if it can be proved that the negative review harmed sales of the original.
In late 2022 the Supreme Court began hearing arguments for Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al, a case regarding whether artist Andy Warhol's rendition of a portrait of the musical artist Prince in the 1980s, which was based on a picture taken by photographer Lynn Goldsmith, was transformative enough to be warranted as fair use under the limited license Goldsmith signed. The Supreme Court ruled in May 2023 that Warhol's portrait did violate Goldsmith's copyright. Many experts felt that the decision has implications for the application of copyright and fair-use law on art and other creative works.
Bibliography
Aufderheide, Patricia, and Peter Jaszi. Reclaiming Fair Use: How to Put Balance Back in Copyright. U of Chicago P, 2011.
"Copyright Fair Use." PBS, www.pbs.org/standards/media-law-101/copyright-fair-use/. Accessed 21 Apr. 2023.
Crews, Kenneth D. Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions. 3rd ed. ALA, 2012.
Gopnik, Blake. "The Supreme Court May Force Us to Rethink 500 Years of Art." The New York Times, www.nytimes.com/2023/03/01/arts/design/appropriation-warhol-renaissance-copyright.html. Accessed 21 Apr. 2023.
Heller, James S., Paul Hellyer, and Benjamin J. Keele. The Librarian’s Copyright Companion. 2nd ed. Hein, 2012.
McLeod, Kembrew, and Rudolf Kuenzli, eds. Cutting across Media: Appropriation Art, Interventionist Collage, and Copyright Law. Duke UP, 2011.
Parker, Christopher. "Supreme Court Rules That Andy Warhol Violated a Photographer's Copyright." Smithsonian Magazine, 24 May 2023, www.smithsonianmag.com/smart-news/andy-warhol-copyright-prince-fair-use-180982230/. Accessed 7 Nov. 2024.
Pavlik, John V. Media in the Digital Age. Columbia UP, 2008.
Postigo, Hector. The Digital Rights Movement: The Role of Technology in Subverting Digital Copyright. MIT P, 2012.
Rahmatian, Andreas. Copyright and Creativity: The Making of Property Rights in Creative Works. Elgar, 2011.
Schwabach, Aaron. Fan Fiction and Copyright: Outsider Works and Intellectual Property Protection. Ashgate, 2011.
Supreme Court of the United States. Syllabus: Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al. No. 21–869, 18 May 2023, www.supremecourt.gov/opinions/22pdf/21-869‗87ad.pdf. Accessed 7 Nov. 2024.
"U.S. Copyright Office Fair Use Index." Copyright.gov, U.S. Copyright Office, Nov. 2023, www.copyright.gov/fair-use/. Accessed 7 Nov. 2024.