Introduction

In some circumstances, conduct that would otherwise constitute copyright infringement is excused and not actually considered to be infringing. This happens when someone sued for copyright infringement successfully asserts a legal defense. A defense is a defendant’s assertion of a legal reason why the plaintiff's claim is not valid. Although there are several defenses which might be asserted in a copyright infringement claim, in this unit of the course, we will cover the doctrine of fair use which is the most commonly asserted and most important defense to copyright infringement.

What is Fair Use?

Its much easier to ask what fair use is than to provide an answer since fair use is one of the most ambiguous and confusing parts of copyright law. Fair use is a legal doctrine that grew out of court decisions holding that in certain situations copyrighted works could be used without permission from or payment to the copyright owner. Fair use allows people to use copyrighted works without the copyright owner's permission for certain limited purposes that usually benefit the public in some way and are not likely to unduly harm the copyright owner. The rationale for fair use is that in some situations, strictly enforcing a copyright owner's rights would restrict the furtherance of creativity and knowledge which is what copyright is ultimately intended to achieve. Fair use helps to ensure the right of free speech guaranteed by he First Amendment. For example, if you want to quote a small portion of a copyrighted work in a review of the work, fair use would allow you to do so without having to obtain the copyright owner's permission. Since copyright owners might not be willing to grant permission to use portions of their works in reviews that are critical or negative, fair use allows people to comment upon and criticize works. In essence, fair use involves a balancing test between the social benefit that the public derives from the unauthorized use against the interest of the copyright owner.

It is very difficult, if not impossible, to specifically define fair use or to tell exactly what types of uses are fair and what types of uses are not fair. There is no comprehensive list of uses that qualify as fair use. In fact, the Copyright Act does not actually define fair use. Although it might seem odd that Congress neglected to define a very important term in copyright law, the lack of a definition was a conscious decision by Congress which believed that it would be better to provide some general guidelines and let the courts apply these guidelines to specific situations and allow the fair use doctrine to develop over time. While this flexibility is beneficial in some respects, the main disadvantage is that it leaves the question of what is fair use open to a degree of uncertainty. Even courts have sometimes reached different results in applying the fair use doctrine to similar situations.

Fair use is an affirmative defense to copyright infringement. This means that there is no way to be absolutely certain whether a particular use is fair or not unless you're sued for copyright infringement and a court agrees with your assertion that the fair use defense is applicable. If the copyright owner proves you’ve exercised one of the exclusive rights without permission, the burden of proof changes and you must prove that your use should be excused under the fair use test. Even if you win, this can be a very expensive proposition so when it doubt, its often better to obtain permission. However, based on the many court decisions applying the fair use doctrine, it is possible for people familiar with fair use case law to predict with a reasonable degree of certainty that certain types of uses would be deemed to be fair or unfair.

The Fair Use Test

Although the Copyright Act does not provide a definition of fair use, it does list several illustrative examples of the types of use which are likely to be fair use and gives a 4-factor test that courts must use to determine whether a use is fair. Section 107 of the Copyright Act provides that:

When a court has to determine whether the use of a copyright work qualifies as fair use, it must evaluate and balance each of these four factors according to the particular situation involved. Since the factors are fairly general and the Copyright Act does not specify exactly how they are to be applied, there is a lot of room for different interpretations and courts have sometimes reached inconsistent results in applying the fair use test to similar situations. The following is a summary of the 4 fair use factors and the issues within each factor that courts tend to consider. 

1. What is the purpose & character of the use?

Factors Favoring Fair Use: Nonprofit Educational Criticism & Comment (Parody) News Reporting Transformative Use - Does the use transform the work to create something new? The Supreme Court considers transformative use to be a factor favoring fair use (Campbell v. Acuff-Rose Music, Inc.) Factors Against Fair Use: Commercial Public Entertainment

2. What is the nature of the copyrighted work to be used?

Factors Favoring Fair Use: Factual Published Factors Against Fair Use: Creative - Music virtually always considered creative as opposed to factual Unpublished

3. How much of the work will you use?

Generally, the more you use, the less likely the use is fair. Greater use is sometimes allowed in certain situations (e.g., parody - without substantial use, parody is not effective). In addition to quantity used also consider quality of the portion used. Is the portion used an important, highly recognizable portion? If so, less likely to be fair use.

4. Does the use have any (actual or potential) effect on the market for the copyrighted work?

Factors Favoring Fair Use: Work is out of print or unavailable Copyright owner is unidentifiable No ready licensing market Factors Against Fair Use: The use substitutes for sales The use reduces licensing income (especially if an established licensing market exists).

Fair Use & Parody

One type of use of copyrighted works that can often qualify as fair use is parody. While commonly, people tend to view parody as using a work solely for humorous purposes, to legally qualify as parody, a use must criticize or comment upon the copyrighted work used.

While Weird Al Yankovic is the most commonly known musical parodist, his songs might not legally qualify as parodies since he is not usually criticizing or commenting on the songs he uses. For instance, Weird Al's Eat It (video) doesn't really criticize Michael_Jackson's Beat It and Like a Surgeon (video) doesn't criticize Madonna's Like a Virgin (video). Instead, Weird Al is usually just being funny in general or poking fun at the artist who sings the song. Consequently, it likely that Weird Al's use of copyrighted songs would not qualify as fair use since it is the critical affect that tends to make parody susceptible to fair use. Weird Al however, doesn't have to rely on fair use since he obtains licenses allowing him to use the songs he "parodies."

In Leibovitz v. Paramount Pictures Corp., 94 Civ 9144 (1996), a court addressed the issue of parody as fair use in the context of a photograph which was not literally copied, but mimicked (shooting a separate photo that mimics the style of the original). Consider whether there's really any parody (criticism or comment on the copyrighted photograph) involved in this case.

In 1991, well-known celebrity photographer Annie Leibovitz photographed actress Demi Moore, nude and pregnant.  The photograph appeared on the cover of the August, 1991 edition of Vanity Fair magazine and became one its best selling issues. A few years later, film studio Paramount Pictures ran an advertising campaign to promote its upcoming film Naked Gun 33 1/3: The Final Insult.  The ad featured actor Leslie Nielsen's face superimposed on the body of a nude, pregnant woman. The ad clearly mimicked the Leibovitz photograph, copying the pose, lighting and setting.  Ms. Leibovitz was apparently not amused at the film company's mimicking of her photograph so she sued Paramount for infringing her copyright in her photograph. Paramount defended against the infringement claim by arguing that its advertisement was a parody of the Leibovitz photo and consequently a fair use. Paramount argued that its advertisement was a parody of the Liebovitz photo since both the photo and the movie dealt with themes of marriage and childbearing (although the Naked Gun's main plot centered around a mad bomber blowing up the Academy Awards ceremony and Leslie Nielsen's character saving the day.. The court viewed the Liebovitz photo as a controversial display of the majesty of child bearing womanhood. After analyzing the use under the fair use test, the court held that the ad was a fair use. Although the ad clearly had a commercial purpose (promoting the film), the court did not believe there was any potential harm to the market for the photo resulting from the ad. The court also found it important that the ad, rather than using the actual Liebovitz photo, used a photo of a different pregnant woman. Spy magazine later ran a spoof of the photos featuring former Demi Moore spouse Bruce Willis.

Possibly the most well-known fair use case involved the unauthorized use of the Roy Orbison song, Oh, Pretty Woman by the rap group 2 Live Crew.  In Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the U.S. Supreme Court decided that parody, even if made for commercial purposes, may qualify as fair use.

Orbison v. 2 Live Crew   Orbison Lyrics   2 Live Crew Lyrics   Pretty Woman, walking down the street, Pretty Woman, the kind I like to meet, Pretty Woman, I don't believe you, you're not the truth, No one could look as good as you Mercy Pretty Woman, won't you pardon me, Pretty Woman, I couldn't help but see, Pretty Woman, that you look as lovely as can be , Are you lonely just like me? Pretty Woman, stop a while, Pretty Woman, talk a while, Pretty Woman, give your smile to me, Pretty Woman, yeah, yeah, yeah Pretty Woman, look my way, Pretty Woman, say you'll stay with me 'Cause I need you, I'll treat you right, Come to me baby, Be mine tonight Pretty Woman, don't walk on by, Pretty Woman, don't make me cry, Pretty Woman, don't walk away, Hey, O.K. If that's the way it must be, O.K., I guess I'll go home now it's late There'll be tomorrow night, but wait! What do I see Is she walking back to me? Yeah, she's walking back to me! Oh, Pretty Woman.   Pretty Woman, walking down the street, Pretty Woman, girl you look so sweet, Pretty Woman, you bring me down to that knee, Pretty Woman, you make me wanna beg please, Oh, Pretty Woman Big hairy woman, you need to shave that stuff, Big hairy woman, you know I bet it's tough Big hairy woman, all that hair ain't legit, 'Cause you look like Cousin It Big hairy woman Bald headed woman, girl your hair won't grow, Bald headed woman, you got a teeny weeny afro Bald headed woman, you know your hair could look nice, Bald headed woman, first you got to roll it with rice Bald headed woman here, let me get this hunk of biz for ya, Ya know what I'm saying, you look better than Rice a Roni Oh, Bald headed woman Big hairy woman, come on in, And don't forget your bald headed friend Hey Pretty Woman, let the boys Jump in Two timin' woman, girl you know it ain't right, Two timin' woman, you's out with my boy last night Two timin' woman, that takes a load off my mind, Two timin' woman, now I know the baby ain't mine Oh, Two timin' woman Oh, Pretty Woman.

Fair Use Examples

1. Italian Book Corp, v. American Broadcasting Co., 458 F. Supp. 65 (S.D. N.Y. 1978) - A television news broadcast about an Italian festival in Manhattan included a performance of a band playing part of the song Dove sta Zaza.

Fair Not Fair

2. Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987) - A biography about author J. D. Salinger which included unpublished letters written by Salinger to friends and other authors.

Fair Not Fair

3. BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005) - A woman downloaded songs using file-sharing software and claimed this was a fair use since she downloaded the songs to see if she wanted to buy them.

Fair Not Fair

4. Leadsinger, Inc. v. BMG Music Publishing (9th Cir. January 2, 2008) - A karaoke company obtained a compulsory mechanical license to reproduce musical compositions for use in its karaoke players. The song's copyright owner wanted additional license fee for the right to reproduce the lyrics of the song on the karaoke video monitor. The karaoke company claimed it didn't have to pay the additional fee since its reproduction of the lyrics was a fair use. Fair Not Fair

More Information on Fair Use

Stanford University has put together an excellent website on fair use located at http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html). Since I'm not sure I could do a better job of summarizing fair use, I'm going to refer you to the Stanford website instead. Additionally, if you have a copy of Moser on Music Copyright, chapter 11 provides a fairly detailed explanation of what fair use is and how the fair use test is applied. It also gives some examples of fair use and contains a discussion of one of the most important and well known fair use cases involving the use of the Roy Orbison song Oh, Pretty Woman by the rap group 2 Live Crew.

Take a look at the information on the Stanford website which is organized as follows:

1. What Is Fair Use?

   1. Comment and Criticism

   2. Parody

2. Measuring Fair Use: The Four Factors

   1. The Transformative Factor: The Purpose and Character of Your Use

   2. The Nature of the Copyrighted Work

   3. The Amount and Substantiality of the Portion Taken

   4. The Effect of the Use Upon the Potential Market

   5. The "Fifth" Fair Use Factor: Are You Good or Bad?

3. Summaries of Fair Use Cases

   1. Cases Involving Text

   2. Artwork and Audiovisual Cases

   3. Internet Cases

   4. Music Cases

   5. Summaries of Parody Cases

4. Disagreements Over Fair Use: When Are You Likely to Get Sued?

Fair Use Myths

Fair use is one of the most confusing areas of copyright law and many people have misconceptions about what is and is not fair use.  Some of the most common are the following:

• I can use a copyrighted work as long as I don't make any profit from my use."

• I can use a copyrighted work as long as I give credit to the author or copyright owner of the work used."

• All use of copyrighted works for educational purposes is fair.

• I can freely use a small portion of a copyrighted work.

• All parodies are fair use.

• Any use I think is fair constitutes fair use.

Additional (Optional) Materials

• Copyright Office Fair Use Fact Sheet

• Indiana University Fair Use Issues - mostly dealing with fair use for educational purposes.

• Bitlaw's Fair Use in Copyright

• Center for Social Media's Fair Use & Free Speech Resources

Fair Use Example Answers

1. Fair - Only part of the song was used, the song's use was incidental to a news event, and the use did not harm the market for the song.

2. Not Fair - Under the second fair use factor, use of unpublished works is less likely to be fair than published works. Also, the biography clearly had a commercial purpose and most of the letters were reproduced in their entirety in the biography.

3. Not Fair - Many websites (e.g., iTunes, etc.) allow sampling 30 second portions of songs before buying. Downloading an entire song for sampling purposes goes against the third factor of the fair use test and is more likely to act as a substitute for purchasing the song therefore harming the market for the copyrighted work.

4. Not fair - The use was for a commercial, non-transformative purpose (singing along to lyrics), all of the lyrics were used, and the use harmed the market for licensing.

---

© 2007 David J. Moser.  Copyrights & trademarks used on this site are the property of their owners. The materials on this site are solely for use of students enrolled in this course and may not be retained or further distributed.