The exclusive rights of the copyright owner are not unlimited in scope. Sections 107 through 121 of the Copyright Act establish limitations on these rights, and together represent the doctrine of “fair use.” Most of the fair use provisions are highly specific exemptions from copyright liability that Congress has enacted to encourage, or at least to allow, certain behavior. These specific exemptions from liability can be found in Section 108 through 120 of the Copyright Act. The catch-all provision, which is the provision generally being referred to when the term “fair use” is used, is section 107. This catch-all fair use provision specifically provides a safe harbor for what would otherwise be infringing activities if such activities are engaged in for the purpose of teaching, scholarship and research. If only the safe harbor provided by section 107 were as simple as the preamble to the section suggests. There are four factors that are considered in determining whether such uses are “fair” and not infringing, even if the use is for teaching scholarship and/or research purposes. Therefore, caution must be exercised with respect to overestimating the reach and protections afforded by section 107.

Section 107 states:

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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Giving generalized rules of thumb when dealing with fair use can be exceedingly difficult. For example, in Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), the United States Supreme Court held that the copying of less than 400 words from the memoirs of President Gerald Ford constituted copyright infringement and was not a fair use. In Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984), the US Supreme Court held that copying an entire movie would be considered fair use if the copying was done for time shifting purposes. While these cases can be reconciled, they work together to provide the ultimate caution when dealing with fair use, be careful with your analysis and make no generalizations. These cases certainly underscore the importance of considering all four of the fair use factors in every case.

In Harper & Row v. Nation Enterprises the Supreme Court focused on the fact that the heart of the work was what was copied. In this particular case, that which was taken was the 400 words that related to why it was that President Ford decided to pardon former President Richard Nixon for his potentially criminal actions relating to the Watergate scandal. As you can hopefully see, this was an extremely important part of the overall work, and indeed was exactly why many people wanted to purchase the book and why magazines were attempting to secure limited publishing rights. The hard in this case was tremendous even though only 400 words were taken from an entire book.

In Sony Corp. v. Universal City Studios, Inc. the Supreme Court focused on the fact that the copying was merely time shifting and presented no real damage to the copyright owner. The heart of the debate revolved around whether home recording devices infringed copyrighted works when users copied television shows for later viewing. Today such a dispute seems silly, but back in the early 1980s a decision the other way would have killed the VCR and later technologies like DVR. The decision was made, however, that the works were being given away freely at one time, so people copying them for later viewing was only a minimal imposition on the copyright holders rights, even though 100% of the work was copied.

As you can see, giving guidance on fair use is extremely difficult because the facts of any particular use make all the difference. If you are looking for generalizations, the several that can be made are: (1) the less you copy the more likely it is a fair use; and (2) academic uses that are truly what we would consider educational, and which are not commercial in nature or commercial by disguise (such as photocopying and creating course packets for profit), are most likely going to be considered fair use under 17 U.S.C. § 107 provided that there is not an adverse effect on the potential market for the work in question. These generalizations gain significant strength when the amount of the work that is taken is not significant in relation to the whole. When discussing the importance of the amount taken, the Supreme Court has focused on whether the quantity and value of the materials used was reasonable in relation to the purpose of the copying, paying particular attention to the fact that the extent of permissible copying will vary with the purpose and character of the use. The best rule of thumb that can, therefore, be passed on the academics and others is that if you are using copyright material without permission you should not be making money on the venture, and you should not use so much of the work that it is unnecessary for students to purchase the work in question.

Before leaving the topic of fair use it is perhaps also useful to understand the procedural relationship between fair use and copyright infringement. It is important to always remember that fair use is an affirmative defense and, therefore, the defendant carries the burden of proof. The fact that fair use is an affirmative defense means there is never any real need to inquire whether a particular use if fair unless it is first determined that an infringement has occurred. This last statement, however, while technically correct may well be an oversimplification. To be sure, in order to reach the question of fair use, first a finding of copyright infringement must have been made. In practice, however, the defendant does and should always assert the defense of fair use even when the defendant is claiming no copyright infringement in the first instance. This is true, of course, because the defendant should never place all its eggs in one basket, and when fair use is a possible defense it is and must be asserted even while asserting the lack of an underlying infringement.

For more information on fair use in copyright law please our Copyright Fair Use Case Law page. This page profiles some of the most important fair use cases from the Supreme Court and the United States Courts of Appeal.