Although the Fair Use provision is in the Coypright Act, prior
to the 1990s, it was seldom invoked outside of academic circles.
Until the 2 Live Crew case. Fair Use seemed only to concern itself
with making copies for the classroom and using portions of works
in academics treateses. The Fair Use provision and the four factors
to be considered in a fair use analysis were dramatically fleshed
out in the 2 Live Crew case. Here, we look at the fair use provision
and the four factors to be used in making a determination of fair
Fair Use Provision of the Copyright Act
The Statutory Decree §107. Limitations on exclusive rights:
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 -
- the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational
- 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.
The fact that a work is unpublished shall not itself bar a finding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
Factor 1 - Purpose and Character of Use
This first factor looks at the new work takes into account the
following three sub-factors.
- Commercial nature or non-profit educational purposes.
- Preamble Purposes
- News reporting
- Degree of Transformation
The first sub-factor (1) simply looks at the new work and determines
whether it was created primarily as a for profit venture or was
created for a non-profit educational purpose. While not at all determinative,
this test indicates that preference will be granted to works that
were created for non-profit educational purposes (like this Web
The second sub-factor (2) looks to see if the new work is for one
of the purposes that are mentioned in the preamble of the fair use
provision. It should be noted that this list is not restrictive.
However, the burden of showing fair use is somewhat easier if the
work is for one of these purposes.
The third sub-factor (3) looks at the degree of transformation
accomplished by the new work. In other words, this sub-factor seeks
to determine whether the new work merely supplants the original,
or whether it adds something new, with a further purpose or different
character, thereby altering the first with new expression, meaning
Factor 2 - Nature of Copyrighted Work
This second factor acknowledges that fact that some works are simply
more deserving of copyright protection than others. Consequently,
this portion of the test looks at the original work and attempts
to determine where that work is in the spectrum of worthiness of
Factor 3 - Relative Amount
The third factor looks at the amount and substantiality of the
copying in relation to the work as a whole. However, the critical
determination is whether the quality and value of the materials
used are reasonable in relation to the purpose of copying. This
is not a pure ratio test in that using a whole work may be fair
use in some circumstances, whereas using a tiny fraction of a work
not qualify for fair use in other circumstances.
Therefore, the quantity, as well as the quality and importance,
of the copied material must be considered. Some Justices have looked
to see that "no more was taken than was necessary" to
achieve the purpose for which the materials were copied.
Factor 4 - Effect upon Potential Market
The fourth factor considers the extent of harm to the market or
potential market of the original work caused by the infringement.
This test takes into account harm to the original, as well as harm
to derivative works.
17 U.S.C. Â§ 107 (1988 ed. and Supp. IV).