Fair Use Rights 101 for Writers: To Use or Not to Use? That is the Question

You might have bumped into the term fair use—what does it mean? And how does it effect writers? Here, literary agent and publishing attorney Joseph Perry has the answers.
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Fair use. I’m sure you’ve heard the term. Perhaps you’ve dealt with it in your own writing. Maybe you’ve heard certain myths about it (like only using a certain percentage of another’s work is okay). To help you better understand the mystery that is fair use, below is an introduction to the concept.

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Let’s start with a brief definition. At a basic level, fair use is a defense to copyright infringement. When you don’t have permission to use copyrighted material, certain uses (used in particular ways) are permitted by law.

Fair use is located in section 107 of the Copyright Act of 1976. Section 107 states:

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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

Now, what does this hunk of text mean? Scholars and judges have attempted for decades to figure that out. Why is that? It’s because fair use is decided on a case-by-case basis, so generally, it’s difficult to predict whether a certain use will be fair. As you can imagine, complications have arisen. To make matters worse, precedent hasn’t always been followed. In a nutshell, the case law is a mess. However, through the decades worth of legal opinions and law review articles, there are a few basic tips we can glean.

Section 107 directs courts to use the four factors above (along with other factors courts may deem relevant, such as bad faith, for example) in determining if a use is fair. Fair use is a balancing test. Let’s briefly go through the preamble and the first four factors to give you a better sense of the text.

Fair Use Rights 101 for Writers: To Use or Not to Use? That is the Question

Preamble

The first paragraph of the statute points to certain purposes that are favored with respect to fair use. They are criticism, comment, news reporting, teaching, scholarship, and research. However, it must be noted that just because your use may fall within these purposes, it does not mean it’s a slam dunk and that’s the end of the analysis. All this means is that courts may favor your use. Remember courts look at every factor before determining if a use is fair.

Factor One

Factor one refers to the purpose and character of the particular use. This factor goes along with the preamble (for certain purposes listed there). To help analyze this factor, courts look to whether your use is “transformative.” That is, does your work add new meaning, utility, etc.? This makes sense. After all, the whole point of copyright law is to advance the arts and sciences. The courts want to make sure you’re not merely reproducing another’s work. A good example is adding quotes from a third-party source. If you add your own commentary or analysis instead of just inserting the quotes, that will likely be favored by a court. However, please keep in mind that there may be certain limitations as to what constitutes "transformative use.” For example, the Second Circuit Court of Appeals in New York just ruled in March that Andy Warhol’s production of a series of prints based on a photograph of the late musician Prince without the photographer’s permission was not fair use.

Please note that factor one also mentions nonprofit educational purposes and commercial purposes. Courts generally favor nonprofit educational purposes over commercial purposes. However, that doesn’t mean that if your use is commercial, your use won’t be fair (if that were the case, then every commercial use wouldn’t be fair). It’s just likely a strike against you.

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Factor Two

Factor two asks about the nature of the work (that is, the work being used). Here courts look at the type of work (creative vs factual) and its characteristics.

Courts are generally more protective of creative rather than factual works, so fair use of creative works is less favored. Moreover, courts believe authors should have the right to determine the circumstances of their first publication, so fair use of unpublished materials may not be favored.

Factor Three

Factor three asks about the amount of the other work you used quantitatively and qualitatively. Generally, the less you use, the more likely this factor will fall in your favor. However, even if you take a small amount of the work, it may not qualify as fair use if it’s considered the “heart of the work (i.e., the most memorable or notable part of the work). A good example of this is from the Supreme Court case Harper and Row, Publishers, Inc. v. Nation Enterprises. Harper and Row entered into a prepublication agreement with Time for the right to excerpt 7,500 words from President Gerald Ford’s unpublished memoir. A source provided President Ford’s unpublished manuscript to the Nation, and the Nation published 300 words from the manuscript, scooping Time. Part of the reason why the Supreme Court ruled against the Nation was that the 300-word excerpt was the “heart of the work.”

However, please note that the general rule that less is more is treated a bit differently in parody cases. A parodist is permitted to borrow quite a bit of the work to conjure up the original work.

Factor Four

The fourth factor concerns itself with whether the use deprives the copyright owner of income or undermines a potential market that the copyright owner can enter into. That is, if you could have purchased or licensed the copyrighted work, that fact may weigh against you. You’ll have to ask yourself if the work is available for license, and how you will potentially use the work. This is where factor four ties into factor one. Are you using the work in the classroom (where there may not be much adverse effect on the market), or are you reproducing the work for commercial reasons?

I hope that this brief introduction has helped you in beginning your investigation of whether your use is fair. The information above is not meant to be legal advice, and you should always seek counsel when you have a legal question relating to fair use. 

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