Copyright is used to protect the person or company who owns the rights to a creation of the mind. Copyright protects a range of works including music, art, writing software, and movies. Intellectual property holders are protected for a specified period of time. This means that during that time, their work cannot be reproduced, either in part or in full, without their permission.
Fair use provides an exception to this rule and allows for work to be reproduced if the use is deemed to be fair. Section 107 of the Copyright Act states that a number of different uses can amount to fair use. This includes, but is not limited to, news reporting, education (research, scholarship and teaching), criticism, parody, search engines and architecture.
When deciding whether or not something constitutes fair use, judges use four factors to help them make a decision. They are not bound by these four factors and judges may include additional factors if they think they need to.
Purpose & Character
The court will first look at how the copyrighted work is being used by the person claiming fair use. To be considered fair use, the original work must have been added to in some way. It’s not enough that a person just copies the work, they must have also added value to it. This is known as a transformative use.
On top of this, nonprofit use of a copyrighted work is more likely to be considered fair than if it was used commercially,
The sharing of information and facts is considered to be beneficial for society. Factual work such as news stories, technical articles, and biographies are more likely going to be considered fair than more creative work. Therefore, it’s harder to claim fair use for more imaginative works such as movies, novels and songs.
This doesn’t mean that creative work is never fair use and factual work is always fair use. Again, the court will use this factor in consideration with the other factors.
The Amount Taken
The general rule is that the less you take, the more you are likely to successfully claim fair use. The courts will look at the quantity and quality of the work used by the person claiming fair use. If you photocopy one page out of a book and add notes for a class, it is likely to be considered fair. However, if you photocopy and entire book to read on vacation, you would more likely be infringing on the copyright holder’s rights.
Effect of Use
The courts will look to see if the use of the copyrighted material harmed the copyright owner in any way. A loss of income usually starts a copyright lawsuit, but other things are also taken into consideration.
It also doesn’t matter if you directly or indirectly copy the original work. If you paint an exact copy of a photograph, it may not be considered fair use. This is because the painting of the photograph could be hurting the current or future market for the copyright owner. It may be that the copyright holder wants to sell paintings of his photo in the future and this opportunity would have been harmed if somebody else had already done it.
Courts use these four factors to help them decide if the use of a copyrighted work can be considered fair or is infringing on the rights of the copyright holder. They may also take into account other factors as claims are evaluated case-by-case.
It’s unlikely that uploading a copyrighted video to YouTube with the description declaring protection because of fair use is going to hold up in court. However, there isn’t an exact formula about what does or doesn’t constitute fair use and courts will look at claims one at a time and apply these four factors as well as any other factor which is considered important.