How much copying is ‘fair use’?

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Which of the following statements is/are true?

(a) Copying up to 25 words is fair use.
(b) Copying less than 10 percent is fair use.
(c) Copying 25 words or 10% is fair use.
(d) Copying only a small amount is fair use.
(e) If you don’t make money on it, it’s fair use.
(f) It’s fair use if it’s for an educational purpose.
(g) Non-profit organizations can’t be sued for copyright infringement.
(h) It’s fair use if there’s no copyright notice on it.
(i) If the author is dead, you can copy anything he wrote.
(j) As long as you give credit to the author, it’s fair use.
(k) “Fair use” is a myth. There is no such thing.

If you answered (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), or (k), then you failed the test. You’re in good company, though; nearly everybody believes at least one of these things is true.

Fair Use has been called “the most troublesome in the whole law of copyright,”1 and for good reason. With the exception of some narrowly limited statutory exemptions, there are no “bright line” tests for determining what is fair use. The bulk of the law on fair use has been left to the courts to develop. Unfortunately, they have not established any specific “bright line” tests, either.

The four-prong test

17 U.S.C. § 107 provides that copying material “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright….” It then directs courts to consider four factors when deciding whether a particular use should be permitted as fair use:

(i) the purpose and character of the use;
(ii) the nature of the work;
(iii) the amount and substantiality of the portion used; and
(iv) the effect of the use on the market for the work.

Taken together, it is clear that Congress intended courts to treat commentary, criticism, news reporting, teaching, scholarship, and research as uses that will satisfy the first prong of the test. This doesn’t mean these are the only kinds of uses that may qualify, though. Nor does it mean that every use of copyrighted material for one of the specified purposes is fair use. The other three prongs must still be considered.

Under the fourth factor, even an educational use may be disqualified from “fair use” protection if it competes in the same market with the original work. If, for example, a teacher were to photocopy and distribute a textbook to students, students would no longer have a need to buy copies of the textbook for themselves. Such a use would have a negative impact on the market for the textbook. In this scenario, a teacher asserting “fair use” as a defense to infringement probably would not be successful.

2 Live Crew, Pretty Women, and the birth of the Transformative Use doctrine

In the 1990’s, 2 Live Crew was sued for copyright infringement for using “samples” of a substantial amount of Roy Orbison’s “Oh Pretty Woman” in a recording of their own. (Although the band had asked, permission had been refused for reasons having to do with protecting artistic integrity. 2 Live Crew therefore went ahead and copied the original recording anyway, ultimately making a nice bundle of money on it.) The case went all the way the United States Supreme Court.

To the surprise of many copyright attorneys, the U.S. Supreme Court ruled in favor of 2 Live Crew. In so doing, the Court established a precedent for “transformative use” as a factor emanating from the other four factors, or coming within the penumbra of the other four factors. Not only that, but according to Justice Souter (who wrote the opinion for the Court), the extent to which a use is transformative was henceforth to be regarded as  the most important consideration in the fair use analysis.2 The more transformative a new work is, the more likely it is to be fair use.  The fact that a work is transformative, the Court declared, outweighs all the other factors. Thus, the Court ruled that even though 2 Live Crew had engaged in a substantial amount of copying; had copied “the heart” of the song; and had commercially exploited the song in a way that negatively impacted the market for the original, the use nevertheless qualified as “fair use” because it was a “transformative” use.

Creating a new internal conflict in copyright law

The Court’s ruling seems to be at odds with the Copyright Act’s grant of an exclusive right to the author of a copyrighted work to make derivative works from it. The Copyright Act defines a derivative work as “any form in which a work may be recast, transformed, or adapted.”3 The language of the statute seems to be pretty clear that Congress intended to ensure that authors would have the exclusive right to transform their works into something else. According to the U.S. Supreme Court, however, it is fair use for other people to transform an author’s work into something else without the author’s permission.

While no definition of transformative use is set out in the Copyright Act, it basically includes any use that alters the purpose, meaning or function of a work, or a portion of it. In other words, it is any use that makes the work serve a purpose, express a meaning, or function in a way that is different from the original purpose, meaning or function of the work.

Parody

Parody is one kind of transformative use that has long been treated as “fair use.” This is because a parody, by definition, comments on, and is a criticism of, the original work. As such, it falls squarely within two of the purposes Congress has identified as the most deserving of “fair use” protection. On balance, other factors tend to support its classification as “fair use,” primarily because parody normally does not displace the market for the original. The segment of the market that is likely to buy the original normally is not the same segment of the market that is likely to buy a work that is critical of it. (Fans are not likely to be in the market for products mocking the things they adore.)

“Entirely different aesthetic”

Historically, courts treated the fact that copying of a work was for purposes of criticism and commentary as being central to “fair use” analysis in cases where no other Congressionally identified purpose (research, education, news reporting) existed. This was why unauthorized copying for a satire (which doesn’t use material from the original for purposes of commentary or criticism of the original work) is not as likely to qualify for “fair use” protection as a parody is. After the 2 Live Crew decision, however, courts seem to be trending toward interpreting “transformative” fair use in an increasingly broad way. In Cariou v. Prince,4, for example, the Second Circuit Court of Appeals held that an artist’s incorporation, into his paintings, of entire photographs that other people had taken was a sufficiently transformative use to qualify as fair use. The Court reasoned that the new work created “a different aesthetic” from that imparted by the original work. In so holding, the court expressly rejected the notion that the new work must criticize or comment on the original in order to be a protected fair use.

It is difficult to square this case with other court decisions that have denied fair use status to satire specifically because satire does not criticize or comment on the original work. Most satire certainly does create a different aesthetic from the original. An orginal work may project a somber, philosophical aesthetic; a satire of it most likely will create the opposite kind of aesthetic, i.e., a light, humorous one.

It is also difficult to square the Cariou decision with the exclusive right of the author to make derivative works from his work. The artist in this case clearly copied the work and then modified it. That is exactly what it means to make a derivative work. There is nothing in the Copyright Act that explicitly requires a derivative work to have the same “aesthetic” as the original work. The rule now, though, at least in the Second Circuit, seems to be that an author has an exclusive right to make derivative works only to the extent the derivative work has the same “aesthetic” as the original work.

The potential import of this ruling is not yet known. For example, how great a difference will qualify as “entirely different”? Since judges are not art experts, will the testimony of expert witnesses qualified to form opinions about aesthetics be necessary in fair use cases? If so, what standard relevant to copyright principles should they employ to decide whether a particular work has an “entirely different” aesthetic versus, say, only a “partially different” aesthetic?

Conclusion

While some courts seem to be applying increasingly expansive definitions of fair use, not all judges are in in the mood to whittle away authors’ rights. “Judges do not share a consensus on the meaning of fair use.”5 It has become what Judge Pierre Leval has described as “a disorderly basket of exceptions to the rules of copyright.”6

You can gamble on the possibility that a court will determine your proposed use of copyright protected material is “fair,” if you wish. If you are interested in following the safest course, however, then you should try to get permission from authors, composers, artists, and recording companies before appropriating the fruits of their labor.

 

  1. Dellar v. Samuel Goldwyn, 104 F.2d 661 (2nd Cir. 1939.)
  2.  Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).
  3.  17 U.S.C. § 101, emphasis added.
  4. 714 F.3d 694 (2d Cir. 2013)
  5. Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990)
  6. Ibid.