This document discusses the copyright fair use defense. It explains that copyright laws were designed to protect creative works while also allowing for limited use of those works under the fair use doctrine. The fair use doctrine is analyzed using the four factors in US copyright law: (1) the purpose and commercial nature of the use, (2) the nature of the copyrighted work, (3) the amount of the work used, and (4) the effect on the work's potential market. Common examples of fair use are commentary, criticism, and parody, with parody being given wide leeway by courts even if commercial. A landmark parody case established that fair use must be decided on a case-by-case basis considering the four factors.

1. THE COPYRIGHT FAIR USE DEFENSE
Copyright
laws
were
designed
to
recognize
the
creative
rights
—
and
their
resultant
profits
—
that
artists
and
authors
possess
in
the
creative
works
they
contribute
to
society.
Accordingly,
such
works
are
protected
against
copyright
infringement
pursuant
to
U.S.
copyright
laws
and
global
treaties
and
protocols.
In
the
United
States,
copyright
protection
is
grounded
in
the
Constitution,
which
specifically
grants
to
Congress
the
power:
To
promote
the
Progress
of
Science
and
useful
Arts,
by
securing
for
limited
Times
to
Authors
and
Inventors
the
exclusive
Right
to
their
respective
Writings
and
Discoveries.
(U.S.
Constitution,
Article
1,
Section
8,
Clause
8,
the
Copyright
Clause)
Yet
at
the
same
time,
it
is
recognized
that
there
is
a
need
to
balance
the
exclusive
rights
of
the
copyright
holder
—
and
indeed
limit
them
—
against
the
needs
and
interests
that
society
may
have
in
making
limited
use
of
such
protected
creative
works.
Primary
among
such
limitations
is
the
copyright
“fair
use
doctrine.”
Although
originally
a
product
of
various
court
cases,
the
fair
use
doctrine
has
now
been
codified
in
the
Copyright
Act
itself.
Following
is
an
examination
of
the
elements
necessary
to
establish
that
a
use
of
copyrighted
material
is
in
fact
a
fair
use
and
not
an
infringement.
The
General
Meaning
of
Fair
Use
According to the Stanford University Libraries’
definition, fair use refers to a copying of a protected
work for a limited and transformative purpose:
In its most general sense, a fair use is any copying of copyrighted material done for a limited
and “transformative”
purpose, such as to comment upon, criticize, or parody a copyrighted
work. Such uses can be done without permission from the copyright owner. In other words,
fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair
use, then it would not be considered an illegal infringement. (Source:
http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/)
No
Statutorily
Defined
Limits
The U.S. Copyright Office notes in particular that “there is no specific number of words, lines, or
notes that may safely be taken without permission.”
Determining what constitutes fair use versus
infringement is the issue that infringement lawsuits are all about; it is more often than not left up
to the courts to decide this issue on a case-by-case basis given the lack of a clear statutory
definition. Furthermore, the courts themselves have rendered varied decisions on the issue of what
constitutes fair use.

2. The
Four
Factors
of
Fair
Use
Section 107 of the U.S. Copyright Act of 1976 (17 U.S.C. §107) lists various purposes for which
reproduction of a copyrighted work may be considered fair use, including for criticism, comment,
news reporting, teaching, scholarship and research. The act also cites four factors to be considered
in determining whether a particular use of copyright-protected material constitutes a “fair use”
exception. The four factors are:
1. The purpose and character of the use, including whether such use is of commercial nature or
is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a
whole; and,
4. The effect of the use upon the potential market for or value of the copyrighted work.
(Source: http://www.copyright.gov/fls/fl102.html)
Two
Common
Categories
of
Fair
Use
Two of the most frequently cited examples of fair use are “commentary and criticism”
and
“parody.”
In fact, “criticism”
and “comment”
are two of the copyright reproduction purposes
specifically stated in section 107 of the Copyright Act. It would be difficult to pen a book review
without quoting at least some original content of the work being reviewed, and commentaries on
other protected works likewise benefit —
and benefit the public —
when fortified with the copyright
holder’s content.
Broad
License
to
Parody
To parody —
or even outright ridicule —
a copyrighted work is a fair use given wide leeway by the
courts. Various cases have held that a greater amount of the original protected content may be
reproduced for parody purposes than for other fair use exceptions. In fact, even where the parody
itself results in a highly lucrative commercial product, the courts have nevertheless protected such
use.
2
Live
Crew
and
“Pretty
Woman”
The benchmark parody case of Campbell
v.
Acuff-­‐Rose
Music,
510
U.S.
569
(1994)
involved the rap group
2 Live Crew composing a parody of the Roy Orbison hit “Oh, Pretty Woman”
for which they
requested a license from the late songwriter’s music publisher. When the request was refused, the
group proceeded to record their parody anyway, which sold about a quarter-million copies before
the publisher brought its suit claiming infringement. Although the lower court granted summary
judgment in favor of the rap group, citing fair use under §107 of the Copyright Act, an appeals
court reversed and held that the highly commercial nature of the parody made it presumptively
unfair under the four fair use factors of the act, and, specifically, that the group had “taken too
much”
in relation to the copyrighted work as a whole as restricted by the third factor cited in the
act. It also found “market harm”
to the publisher under the fourth factor.

3. Supreme
Court
Remand
The U.S. Supreme Court restated the notion that fair use must be decided on a case-by-case basis:
The fact that parody can claim legitimacy for some appropriation does not, of course, tell
either parodist or judge much about where to draw the line. Like a book review quoting the
copyrighted material criticized, parody may or may not be fair use, and petitioner's
suggestion that any parodic use is presumptively fair has no more justification in law or fact
than the equally hopeful claim that any use for news reporting should be presumed fair.
The
court
reversed
the
appeals
court
and
remanded
the
matter
whereupon
it
was
settled
out
of
court.
What
is
of
particular
note
for
this
discussion,
however,
is
the
fact
that
Justice
Souter
copied
both
the
original
Roy
Orbison
lyrics
as
well
as
the
2
Live
Crew
parody
lyrics
in
full
in
the
appendices
to
his
majority
decision
—
thus
providing
us
with
at
least
one
indisputable
example
of
“fair
use”!