What’s Fair in Fair Use?

Copyrighting is an important tool used to protect the originality and productive rights of a creator’s work. Before the formation of the information highway, it was somewhat difficult for creators to defend their works due to the limited scope their works would reach.  Information has never been as readily accessible as it is today, through the internet. Internet users now have the ability to look up virtually anything within this massive treasury of information. Consequently, copyright doctrines were introduced. Creators and copyright holders now hold quite a bit of power, and are able to file claims, seek remedies for infringement on their work, etc. Punishments for copyright infringement is also stricter than ever, and copyrights have been extended for longer periods of time, in order to reinforce this doctrine of exclusive rights. In fact, creators of video sites, such as YouTube, have imposed a strict copyright system that is classified by some as abusive and/or oppressive. It is seen as a system which deems people “guilty until proven innocent”, forcing some creators to eliminate negative reviews on their content for some time, and thereby, inhibiting the creative process for many. As a result, the doctrine of fair use has never been more important as it is now, because it is necessary to defend free expression in this digital age.

Recollecting Fair Use

“Fair Use” was briefly investigated in a previous article involving copyrights (click here to recap). This article performed an extensive analysis of the four central points to fair use, and the role it plays in today’s world. To recap, fair use is the legal right to copy and/or use a portion or all of a copyrighted work, without the copyright holder’s permission or objection. It allows for example, 16 year old video creator Sally to use a clip from the movie Toy Story for her oral report on animation, without having to contact Disney for permission. It helps eliminate the need for legal paperwork, especially for people inexperienced with the law. Regardless of the situation, successful and actual fair use requires the firm establishment and acknowledgement of the four pillars; purpose, nature, amount, and effect. By examining each one independently, one will be able to develop an understanding of fair use, and determine whether or not their use is truly fair.


The first of these legal pillars is purpose. Regarded as one of the most influential points of fair use, purpose is defined as the character and reason for which one is using the copyrighted work. Fair use usually favors creators that use protected works for teaching, research, scholarship, criticism, comment, and news reporting. Restricting access to the work, if left relatively “untouched” under certain conditions, also helps the case towards fair use. It is easy to see the difference in limiting the audience to a group of students or specific people, as opposed to the entire world. Parodies are also considered favorable, since they fall under the sphere of “transformative” works; works that enhance the original work to a certain degree to where it is new, but still maintains the integrity of the original work. When a creator demonstrates how they are adding value to the work, it is easier to see it as a transformational experience, rather than a blatant copyright violation. Judges in copyright litigation are very fond of this premise, and often use it to uphold fair use defenses against copyright claims.

There are certain purposes that oppose fair use, and usually hurt the user’s defense. These purposes include if it will be used for any sort of commercial activity and any profit gained from the use. The use of it for pure entertainment is also detrimental to the argument of fair use, as well as the denial of credit to the original author. Of course, there can and have been cases in which the use is composed of both positive and negative attributes. What one does in this case, is determine whether or not the overall purpose is generally favorable or not. For example, one may make an entertaining, yet criticizing video review of a particular movie, receive ad revenue, and still be considered fair use. While it is for entertainment purposes, and the creator is receiving compensation, one can clearly see that the main purpose of the video is to provide a criticism of the original work. However, this is just one of the four pillars involved in establishing fair use.


The second factor to take into consideration is the nature of the work used. Typically, natures that impact fair use positively are factual in nature, and are often nonfiction based. In contrast, highly creative and fictional works impact fair use negatively. Copying the facts of a scientific discovery within a published journal is far more favorable than copying the wondrous fantasy land found within a massively successful children’s series. In spite of this, many of the controversial fair use claims heard today involve works whose nature is fictional and imaginative. Moreover, it could be argued that the nature of the work, while considerable, does not have significant weight in the weighing of fair use.


The third condition that would be evaluated is the amount of the work used. It seems mostly straightforward, but there are things to be wary of. In determining this, one must look at the exact quantity being used, both quantitatively and qualitatively. Quantitative use refers to the actual “physical” amount being used, whether it is size or time. Using small portions or clips of the work are positive physical amounts. In contrast, using a large portion or the entire work itself, generally weigh down the case for fair use. Moreover, any amount can be justified as long as the work itself serves an educational purpose. Qualitative use involves whether or not the “heart” or central core of the work is used. This is often seen as the critical element, scene, or quality that defines the entire work as a whole. If the small scenes mentioned contain the “heart of the work”, then even they can be used to counter fair use.


The final pillar supporting fair use is the effect the use has on the original work’s market value. This is where the financial and/or potential financial impact is determined. Favorable conditions that uphold fair use are: whether the user lawfully acquired or purchased the copy of the original work; whether one or a few copies were made, whether there was significant effect on the market place for the original work, and the lack of a licensing mechanism.  A controlled release based off of the legal acquisition of the work that does not affect the value or market potential of the original therefore, is a very solid case for fair use. Hypothetically, if one were to take a work and use it in a way where it poses no effect on its value, market place, and acknowledges a completely different audience than the original work, then this potentially favors the doctrine of fair use.

It is self-explanatory that anything opposite to the above clearly degrades any case for fair use. If the use would essentially replace the sale of the copyrighted work, or even impair its market, then it is in opposition to fair use. Other elements would be the presence of a reasonably available licensing mechanism with affordable licensing fees in order to use the work. Also, if one were to make numerous copies or make it openly accessible to the public through the internet or some other permeable form, then that too hurts fair use.

Time to Tip the Scales

Once one understands and thoroughly examines all four central points of attempted fair use, the only thing left to do is to balance the positives and the negatives, and reach a verdict. This process can be described as weighing the evidence of both sides upon a scale, and applying as much scrutiny and objective observation upon each side, in order to make the final decision of whether or not their right to fair use is valid. Nevertheless, during this process one will see that the four factors of fair use are not equal in importance. Generally, purpose and the effect on market are what carry tremendous weight upon the decision, and even those factors can have conflicting interests and elements within them. It is crucial that one go through every detail and consider every angle of the factor before moving on.

The judgement made ultimately decides what will happen with the rest of the work. It is best that this is done before the “official use” occurs, in order to avoid any potential claims of infringement. If fair use failed to be upheld then the work can be scrapped, damages from the claim can be requested, or permission from the copyright owners can be sought, through a more tedious process. If the result turns out to be widely favorable for fair use, then the usage is justified and one can be more confident in their legal right to use the work and have a method of defense against any malicious or vague copyright claims. However, if the scales were to tip just slightly towards the favorable side of fair use, then one should reconsider their use as they are potentially walking a very fine line.

The Culture of Creation and Progression

Thanks to the power of the internet, creativity and community have begun to come together. People congregate to exchange information and to seek and create content. Most of this content arises from the fact that the creators become inspired by another’s work.  Building upon the ideas of others is the culture that the chaos of internet has created.  True original ideas are hard to come by. Instead, progress is made through the inspiration and expansion of previous works, in order to provide a way forward towards new, brilliant ideas.

It is true that copyright owners do have the right to prohibit the usage of their work in ways that infringe their rights, and they are more than welcome to exercise that right whenever they feel their rights have been violated. However, the recent abuse of copyright claims across the internet and beyond, has affected even those that are still doing the right thing. The fair use doctrine was created with the purpose of protecting this culture and the content created from it. In order to protect these works and the original works they use, a balance between the two must be achieved. A system must be developed that clearly defines the line between fair use and copyright infringement and promotes an atmosphere of creation while still protecting and upholding the legal rights of others.

If you have any questions regarding fair use or need help contacting copyright owners, please contact the Law Office of Mark Smith, PLLC here.