What are the 4 circumstances in which fair use is allowed?

Fair use is a crucial legal doctrine that permits the limited use of copyrighted material without requiring permission from the copyright holder. While there isn't a definitive list of "circumstances" where fair use is always allowed, its applicability is determined on a case-by-case basis by analyzing four key factors. These factors help evaluate whether a particular use qualifies as fair. Understanding these factors is essential for anyone dealing with copyrighted content.

The four factors considered when determining if a specific use falls under fair use are:

1. The Purpose and Character of Your Use

This factor examines why and how you are using the copyrighted material. Courts typically favor uses that are transformative, meaning they add new expression, meaning, or insight to the original work, rather than merely reproducing it.

• Non-profit, Educational, or Personal Use: Uses for teaching, scholarship, research, news reporting, criticism, or commentary are often viewed more favorably than commercial uses.
• Transformative vs. Derivative: A transformative use creates something new with a different purpose or character, such as a parody or a critical analysis. A derivative use merely adapts the work without significant new expression (e.g., turning a book into a movie without adding substantial new elements). Transformative uses are more likely to be considered fair.
• Commercial vs. Non-Commercial: While commercial uses are not automatically excluded from fair use, non-commercial uses are generally given more leeway.

Examples:

• Fair Use: Using clips from a movie in a documentary that critiques the film's themes.
• Less Likely Fair Use: Reproducing an entire copyrighted image on a t-shirt for sale without adding any new creative elements.

2. The Nature of the Copyrighted Work

This factor looks at the original copyrighted work itself. The type of work can influence whether a use is considered fair.

• Factual vs. Creative Works: Using material from factual works (e.g., news articles, scientific papers, biographies) is generally more likely to be considered fair use than using material from highly creative works (e.g., novels, poems, songs, paintings). Facts themselves cannot be copyrighted, only their expression.
• Published vs. Unpublished Works: Using material from an unpublished work is less likely to be considered fair use. Authors have a greater right to control the first public appearance of their work.

Examples:

• Fair Use: Quoting a passage from a published scientific paper for an academic review.
• Less Likely Fair Use: Publishing excerpts from a famous author's private, unpublished letters.

3. The Amount and Substantiality of the Portion Taken

This factor considers how much of the original copyrighted work was used and whether the portion taken was the "heart" or most significant part of the work.

• Quantity: Using a small portion of the original work is generally more favorable than using a large portion. There are no fixed percentages or word counts; it's a qualitative assessment.
• Quality/Substantiality: Even if a small amount is taken, if it represents the "heart" or the most memorable and significant part of the original work, it weighs against a finding of fair use.

Examples:

• Fair Use: Quoting a few lines from a song for a music review.
• Less Likely Fair Use: Reproducing the entire chorus of a song, even if it's only a small fraction of the entire song, if that chorus is its most recognizable part.

4. The Effect of the Use Upon the Potential Market

This is often considered the most important factor. It assesses whether your use of the copyrighted material harms the market for or value of the original work.

• Market Harm: If your use competes directly with the original work or acts as a substitute for it, it is less likely to be considered fair use. This includes both current and potential future markets.
• Licensing: If there is an established market for licensing the type of use you are making, using the work without permission may weigh against fair use, as it bypasses the copyright holder's ability to profit from their work.

Examples:

• Fair Use: A brief news report showing a clip from a movie trailer to inform the public about an upcoming film.
• Less Likely Fair Use: Distributing unauthorized copies of a textbook to students, thereby reducing sales of the original textbook.

Summary of Fair Use Factors

These four factors are not applied in isolation; courts weigh and balance them together in each specific case to determine if the use is fair. There is no simple formula, and the outcome often depends on the specific context and facts.

For more detailed information on fair use, you can consult resources like the U.S. Copyright Office.