34. How does a court determine if use of a copyright constitutes “Fair Use”?
The most disputed affirmative defense to copyright infringement is likely the “fair use” of the copyrighted work. To constitute fair use, the use of the work generally must not be extensive and not cause a negative impact on the copyright holder. The doctrine does not protect activity that is used to diminish the value of the copyright to the rightful holder. In determining whether use of a copyright constitutes fair use, a court will employ several factors in examining the nature and extent of the use. These factors include:
• Purpose of the Use – If the purpose of the use was for a non-profit purpose, it is more likely to be protected as a fair use than a commercial activity.
• Nature of the Work – What type of copyright is claimed. If the work was created for a commercial purpose, it may demand higher protection. Likewise, a work made for entertainment or a fictional work, may afford greater protection than a fact-based work.
• Extent of the Use – If the use was incidental or a very small portion of the work was used, it is more likely to be a fair use. Also, if the work was used as collaboration or as part of a larger project, it may be transformative in nature. A work that sufficiently transforms the original work may be fair use.
• Economic or Market Impact – If the use of the copyrighted work causes a negative market or economic impact on the use or value of the original work, it is less likely to be fair use.
• Discussion: What do you think about the fair use doctrine? Can you think of any other factors that should be considered in determining fair use?
• Practice Question: Tracy is a professor at a large state college. In her class of 300 students, she uses excerpts from a popular business book. The author, who is struggling to repay debt from his unsuccessful run for Congress, decides to sue her and the university for copyright infringement. Tracy claims that her use of excerpts from the book is fair use. What factors will the court consider in determining whether the Tracy’s use constitutes fair use of the copyrighted work?