Copyright and Fair Use Guide

Fair use is a statutory exception to the copyright holder's bundle of exclusive rights. It allows for the unlicensed (that is, without permission or payment of royalty) use of a copyrighted work where the balance of several factors weighs in favor of such use.

Four factors are specifically stated in the statute. Application of fair use requires a factual analysis of these four factors as applied to the facts of the proposed use--that is, fair use must be determined on a case by case basis for every individual proposed use.

The four statutory factors of fair use are:

1. The purpose and character of the proposed use
2. The nature of the work being used
3. The amount and substantiality of the work being used
4. The effect of the use upon the market for the copyrighted work

We see certain themes often emerge--for example, highly creative works may be more protected under factor 2 than highly factual works--but there are no "bright-line" rules for judging an individual factor or for how deciding how the four factors should be weighed against one another.

Although no single factor is determinative, court decisions in more recent years have revealed that transformative use can be an important consideration, as can the potential harm to the market for the copyrighted work.

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