Home » Copyright/Intellectual Property » Measuring Fair Use: The Four Factors

Measuring Fair Use: The Four Factors

28 February 2018

PG has observed some confusion among authors about the copyright doctrine known as Fair Use.

PG has also observed some confusion among lawyers about the copyright doctrine known as Fair Use.

Fair Use describes an exception to the protection extended by copyright law to original works of various types.

First, the basics:

From the US Copyright Office:

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.

In the United States, the rights of the copyright owner (usually the original creator, but can also be another party to whom the original creator has transferred the ownership of the copyright or to whom the original creator has granted a license to rights under the copyright together with the right to enforce such rights against unauthorized third-party infringers) are set forth in Title 17, Chapter 1, Section 106 of the US Code.

Here is Section 106 with some highlighting by PG:

Chapter 1, Section 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

As PG mentioned above, Fair Use is an exception to the exclusive rights of copyright owners. Under Fair Use, without permission of the copyright owner, someone may, for example, reproduce a paragraph from a literary work.

Section 107 describes Fair Use:

107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

PG says it could almost sound simple if you read the statutes for pleasure.

The following discussions dissect a few of the complexities that arise from the 175-word text of the Fair Use statute.

From Findlaw:

Under the doctrine of “fair use,” the law allows the use of portions of copyrighted work without permission from the owner. Fair use is a defense to copyright infringement. This means that an unauthorized use of copyrighted material is excusable if it falls under the principle of fair use. Although the law does provide guidelines for making this assessment, determining fair use is not always easy since it is a grey area of the law. Consequently, courts make decisions on a case-by-case basis.

What Work Does Copyright Protect

Under Title 17 of the U.S. Code, copyright owners have the right to limit the use of their creative work. An owner has the right to distribute, reproduce, display, make derivatives, or perform the work in public. This right applies to both published and unpublished works fixed in a tangible medium. Creative works include:

  • Literature
  • Music
  • Motion pictures and other audiovisual productions
  • Sound recordings
  • Pantomimes and choreography
  • Pictorial, graphic, and sculptures
  • Architectural designs

Copyright law does not apply to ideas and facts; names, pen names, titles, or slogans; extemporaneous speeches; blank forms and standardized material; and government works. Although copyright law does not protect facts and ideas, copyright protects the author’s phrasing or form of expression.

. . . .

Under the Copyright Act, the fair use of copyrighted material without permission is allowed when used for the following purposes:

  • Criticism;
  • Comment;
  • News reporting;
  • Teaching, includes making copies for use in the classroom;
  • Scholarship and research;
  • Parody.

These uses do not grant the right to use the copyrighted work in its entirety. Rather, the use should be limited to quoting, excerpting, summarizing, and making educational copies of the material.

. . . .

Courts evaluate fair use on a case-by-case basis. The following are cases in which a court ruled that an unauthorized use was fair:

  • Google’s reproduction of images into thumbnails to display on search results pages was fair use because the alteration of the image was transformative, and therefore, it outweighed the commercial benefit received by Google.
  • A biographer’s quotation of 16 unpublished documents was fair use because it comprised no more than 1 percent of Richard Wright’s unpublished documents and it was for an informational purpose.

The following are cases in which a court ruled that unauthorized use was not fair:

  • It was not fair use for the Nation magazine to publish central parts of former President Gerald Ford’s memoir prior to its publication because it substantially decreased its marketability.
  • Paraphrasing a substantial portion of author J.D. Salinger’s unpublished letters in a biography was not excusable under the fair use doctrine because the general public would view them in this format for the first time and the paraphrased material was a central part of the biography.

Link to the rest at Findlaw

More on Fair Use from another source.

From the Stanford University Libraries:

The Transformative Factor: The Purpose and Character of Your Use

In a 1994 case, the Supreme Court emphasized this first factor as being an important indicator of fair use. At issue is whether the material has been used to help create something new or merely copied verbatim into another work. When taking portions of copyrighted work, ask yourself the following questions:

  • Has the material you have taken from the original work been transformed by adding new expression or meaning?
  • Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

In a parody, for example, the parodist transforms the original by holding it up to ridicule. At the same time, a work does not become a parody simply because the author models characters after those found in a famous work.

Purposes such as scholarship, research, or education may also qualify as transformative uses because the work is the subject of review or commentary.


Roger borrows several quotes from the speech given by the CEO of a logging company. Roger prints these quotes under photos of old-growth redwoods in his environmental newsletter. By juxtaposing the quotes with the photos of endangered trees, Roger has transformed the remarks from their original purpose and used them to create a new insight. The copying would probably be permitted as a fair use.

. . . .

The Nature of the Copyrighted Work

Because the dissemination of facts or information benefits the public, you have more leeway to copy from factual works such as biographies than you do from fictional works such as plays or novels.

In addition, you will have a stronger case of fair use if you copy the material from a published work than an unpublished work. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of his or her expression.

. . . .

The Amount and Substantiality of the Portion Taken

The less you take, the more likely that your copying will be excused as a fair use. However, even if you take a small portion of a work, your copying will not be a fair use if the portion taken is the “heart” of the work. In other words, you are more likely to run into problems if you take the most memorable aspect of a work. For example, it would probably not be a fair use to copy the opening guitar riff and the words “I can’t get no satisfaction” from the song “Satisfaction.”

This rule—less is more—is not necessarily true in parody cases. A parodist is permitted to borrow quite a bit, even the heart of the original work, in order to conjure up the original work. That’s because, as the Supreme Court has acknowledged, “the heart is also what most readily conjures up the [original] for parody, and it is the heart at which parody takes aim.” (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).)

. . . .

The Effect of the Use Upon the Potential Market

Another important fair use factor is whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. Depriving a copyright owner of income is very likely to trigger a lawsuit. This is true even if you are not competing directly with the original work.

For example, in one case an artist used a copyrighted photograph without permission as the basis for wood sculptures, copying all elements of the photo. The artist earned several hundred thousand dollars selling the sculptures. When the photographer sued, the artist claimed his sculptures were a fair use because the photographer would never have considered making sculptures. The court disagreed, stating that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed. (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).)

Again, parody is given a slightly different fair use analysis with regard to the impact on the market. It’s possible that a parody may diminish or even destroy the market value of the original work. That is, the parody may be so good that the public can never take the original work seriously again. Although this may cause a loss of income, it’s not the same type of loss as when an infringer merely appropriates the work. As one judge explained, “The economic effect of a parody with which we are concerned is not its potential to destroy or diminish the market for the original—any bad review can have that effect—but whether it fulfills the demand for the original.” (Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).)

. . . .

In some cases, the amount of material copied is so small (or “de minimis”) that the court permits it without even conducting a fair use analysis. For example, in the motion picture Seven, several copyrighted photographs appeared in the film, prompting the copyright owner of the photographs to sue the producer of the movie. The court held that the photos “appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable.” The court excused the use of the photographs as “de minimis” and didn’t require a fair use analysis. (Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998).)

As with fair use, there is no bright line test for determining a de minimis use. For example, in another case, a court determined that the use of a copyrighted poster for a total of 27 seconds in the background of the TV show Roc was not de minimis. What distinguished the use of the poster from the use of the photographs in the Seven case? The court stated that the poster was clearly visible and recognizable with sufficient observable detail for the “average lay observer” to view the artist’s imagery and colorful style. (Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).)

. . . .

What If You Acknowledge the Source Material?

Some people mistakenly believe it’s permissible to use a work (or portion of it) if an acknowledgment is provided. For example, they believe it’s okay to use a photograph in a magazine as long as the name of the photographer is included. This is not true. Acknowledgment of the source material (such as citing the photographer) may be a consideration in a fair use determination, but it will not protect against a claim of infringement. In some cases, such as advertisements, acknowledgments can backfire and create additional legal claims, such as a violation of the right of publicity. When in doubt as to the right to use or acknowledge a source, the most prudent course may be to seek the permission of the copyright owner.

Link to the rest at the Stanford University Libraries (Author: Rich Stim, Attorney at law, Nolo Legal Editor, Blogger — Dear Rich: Nolo’s Patent, Copyright and Trademark Blog, Author, Nolo Press)

In PG’s perfect world, there would be more bright-line rules denominating the coverage and limits of the Fair Use law. Such rules would certainly assist creators who want to use some of the expressions of the creativity of others without giving rise to lawsuits for copyright infringements or threats thereof.

Here are some Fair Use bullet points from The Ohio State University Pressbooks Sites:

Common Examples of Fair Use

Students and teachers rely on fair use in order to accomplish many of their educational goals. Below are some, but by no means all, educational activities that rely upon fair use.

Student Projects
Includes both media and text.

Your fair use analysis will change depending on how the project is presented, i.e. only the professor sees it, you present it to the whole class, you present it to a group outside of the class, or you post it online for anyone to see.

. . . .

Sound or Video Clips for Teaching
Students and teachers can make use of video or sound clips in creating multi-media presentations for use in the classroom.

. . . .

 Content in Scholarly Articles
It is common to quote other researchers’ writings or use others’ images, graphs or charts in your own scholarly writing. These practices have long been considered acceptable under fair use.

. . . .

Fair Use for Non-Educational Purposes

Fair use is not only available for educational purposes. Many other commercial and non-commercial activities depend upon fair use. Some of these common fair uses include:

  • Quotes in books, news reports and blogs
  • Mash-ups and remixes
  • Parody, such as on television shows like South Park or Saturday Night Live
  • Video or sound clips in documentary films
  • Thumbnail images on search engines

. . . .

 Myths about Fair Use

Many people have heard of fair use and have some ideas about what it is. Unfortunately, there are many myths or misunderstandings about exactly what fair use covers, what the law states or how it can be applied. Below we dispel just a few of the most common myths about fair use.

Myth 1: All educational use is fair use.

Fact: While many educational uses are considered fair use, there are some activities that do not meet the fair use criteria. For example, a teacher can’t make copies of an entire text book so that students don’t have to buy it.

. . . .

Myth 3: All socially beneficial use is fair use.

Fact: Fair use is designed to help balance the rights of the creator and the social benefit of using copyrighted works in certain ways. Not all uses of copyrighted works that would be socially beneficial, however, qualify as fair use. For example, scanning and posting an entire medical text book online for anyone to access for free is socially beneficial but probably not fair use.

. . . .

Myth 5: It is not possible to have a fair use when a permissions scheme exists for a work.

Fact: Just because rights holders are willing to charge you to use their copyrighted material, does not mean that fair use cannot apply. For example, the Associated Press created a licensing scheme to quote from AP stories but quoting from news stories has long been considered fair use.

Myth 6: Fair use specifies a percentage or amount of a work that is okay to use.

Fact: The law does not state that using 10% of a book or 30 seconds of a song or video clip is fair use. You can often use more than these arbitrary limits, while sometimes using even less might not be fair use. The amount of the original work used is only one of the four factors to consider.

Link to the rest at The Ohio State University Pressbooks Sites


Copyright/Intellectual Property

14 Comments to “Measuring Fair Use: The Four Factors”

  1. Thank you. This was a good recap.

    I did wonder about the educational use exception. I seem to recall a case in which a professor was copying chapters from different books and assembling them–possibly having the campus bookstore do that and selling these to students, saving them the cost of buying the different books. If memory serves, this was not adjudged to be fair use. (I sure hope not!) Your comment would be appreciated.

    • You’re welcome, Jacqueline.

      Educational use is one of the factors which weighs on the fair use side of the scale in close cases, but won’t do the job by itself.

      If a teacher/professor includes a couple of pages from a book in a Powerpoint that is made available in digital or printed form to the members of the class, educational use should cover that use.

      The example you mentioned was creating and selling an entire textbook, which any amount of fair use argument is not going to protect.

    • You’re thinking of the Kinkos law suit brought by various textbook publishers. Kinkos lost.


  2. Thanks, PG.

    My motto is, “When in doubt, don’t use it.” 🙂

  3. THANK YOU !!!

  4. Fascinating. I have often wondered about cover or tribute bands. When a tribute band performs an evening of songs by say, David Bowie, must they get prior permission… pay a royalty?

    • PG is far more qualified than I, but I believe there is a licensing fee for public performance of copyrighted works – however IIRC the fee generally falls on the venue and most pay blanket fees to the big music publishers to cover these costs.

      I would imagine – in practice – hunting down every artists who belts out “Let it be” would be as effective as chasing people who copy mp3s and share them with their friends.

    • While the fundamental legal elements are the same for fair use, regardless of the material which is subject to copyright, the music business jealously guards its copyrights.

      Radio, a massive business back in the day, spurred the creation of a complex royalties collection system to reward artists, composers and (especially) music publishers. Television added another arena where it was profitable to make certain media paid the music copyright holders a royalty for everything that might be subject to a royalty. Today, large business organizations exist for the principal purpose of collecting royalties other large organizations that dominate the music business.

      In practical terms, because the music copyright business is so profitable, finding copyright infringement and collecting royalties pays very nicely, so you’re more likely to get hit in a more serious way than you are if you copy and display a copy of a painting created by Thomas Hart Benton for which the copyright has not expired on your blog.

      (Although PG encourages that everyone respect all copyrights and only make such use of copyrighted material as is permitted by Fair Use and other elements of copyright law.)

  5. I used a photograph on my blog, noting ‘fair use of one sort or another’. What I do is often a kind of scholarly parody/satire, yes, criticism, and commentary on the news or current events and issues. I doubt if the use impacted the marketability of the work in any significant way. The thing is, I’m not making any money off of it–the odds are I’ll never see a penny from Google’s blogger. And, I could always cheerfully take it down and replace it with something else. In terms of lawsuits, any judgement would be uncollectable anyways, due to personal circumstances.

  6. This is very simplistic, and it won’t protect you against legal action, but my advice to people writing blogs is to think of The Golden Rule. Would you want someone to do this to your content? If the answer is no, then don’t. If it’s yes, you should consider the cost versus the value if you are in the wrong. Rarely will the value out weigh the cost.

    • Please feel free to repost, reblog, excerpt, quote, criticize, or otherwise comment negatively or disparage my blog anywheres you likes.

      …we could do a parody together.

  7. Repeating something I have said before, going out of your way to get permission to quote has rewards in addition avoiding copyright violations. I edited a company technical journal for a while. The staff IP lawyer assigned to us insisted on permissions for everything. For reasons PG probably knows better than me, a periodical with deep corporate pockets that could be construed as a marketing instrument is uniquely vulnerable to copyright infringement claims.

    At first I and our authors bridled, but we quickly realized that requesting permission was quite helpful. Every author we asked was glad to grant permission and most offered helpful comments and once or twice saved an author from an embarrassing mistake. Some valuable relationships were established.

    Consequently, I began to look at requesting permission as a useful development tool rather than a chore.

Sorry, the comment form is closed at this time.