The Doctrine of Fair Use

Fair Use Doctrine Defined

In 1976, the doctrine of fair use was codified in Section 107 of the Copyright Act, which states that unauthorized reproductions of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” The Act also sets forth four factors to be used in determining, on a case-by-case basis, whether a particular use of a copyrighted work is a fair use:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.

Because application of the doctrine of fair use involves a multifactor analysis, and the weight afforded to any single factor varies from case to case, the line between infringement and fair use is sometimes thin and can be difficult to discern. It is always fact-intensive. There is no magic number or percentage of words, photographs, musical notes, etc., that must be copied to rise to the level of infringement, or that may be taken without prior permission but with confidence, such that one can be assured of the applicability or inapplicability of the fair use doctrine.