This document discusses two of the four factors courts examine to determine fair use under copyright law: the amount and substantiality of the portion used, and the effect of the use on the potential market for the copyrighted work. For the third factor, courts look at how much of the original work was used and whether it diminishes the original's value. For the fourth factor, the most important, courts examine whether the use would negatively impact the potential market for the original work if such uses became widespread. The analysis considers both existing and potential markets for the work.

1. Fair use Factors 2
This article is mainly about the mostimportant part of copyrights laws thatpeople
never understand to the fullest. The fair use concept has a lot of factors imbedded
into it and in this article we will see those factors in detail and give you a perfect
understanding of the fair use section of the copyrights laws. And how these factor
could prevail usefulwhen taking up court hearings. For elaborate explanation we
have split this article to 2 parts.
Here are the next 2 factors on fair use:
3. Amount and Substantiality of the Portion Used
Unfortunately, there is no single guide that definitively states the how much of a
copyrighted work could be used without copyrightliability. Instead, courts look to
how such excerpts were used and whattheir relation was to the whole work. If
the excerpt in question diminishes the value of the original or embodies a
substantialpart of the efforts of the author, even an excerpt may constitute an
infringing use. If you limit your useof copyrighted text, video, or other materials
to only the portion that is necessary to accomplish your purposeor convey your
message, it will increasethe likelihood that a court will find your useis a fair use.
4. The Effect of Your Use Upon the Potential Market for the Copyrighted Work

2. In examining the fourth factor, which courts tend to view as the mostimportant
factor, a court will look to see how much the marketvalue of the copyrighted
work is affected by the use in question. This factor will weigh in favor of the
copyrightholder if “unrestricted and widespread” usesimilar to the one in
question would have a “substantially adverseimpact” on the potential market for
the work.
The analysis under this factor will also depend on the nature of the original work;
the author of a popular blog or website may argue that there was an established
market sincesome such authors have been given contracts to turn their works
into books. Therefore, a finding of fair use may hinge on the nature of the
circulated work; simple e-mails such as those in the Diebold case (discussed in
detail below) are unlikely to have a market, while blog posts and other creative
content have potential to be turned into published books or otherwise sold. In
addition, the author of a work notavailable online, or available only through a
paid subscription, may arguethat the use in question will hurt the potential
market value of that work on the Internet.
Assessing theimpact on a copyrighted work’s marketvalueoften overlaps with
the third factor becausethe amount and importanceof the portion used will
often determine how much value the original loses. For instance, the publication
of five lines froma 100-pageepic poem will not hurtthe marketfor the original in
the sameway as the publication of the entirety of a five-line poem.
This fourth factor is concerned only with economic harmcaused by substitution
for the original, not by criticism. That your use harms the copyrightholder
through negative publicity or by convincing people of your critical point of view is
not part of the analysis. As the Supreme Courthas stated:
[W]hen a lethal parody, like a scathing theater review, kills demand for the
original, it does not producea harm cognizableunder the CopyrightAct. Because
"parody may quite legitimately aim at garroting the original, destroying it
commercially as well as artistically," the role of the courts is to distinguish
between biting criticism [that merely] suppresses demand [and] copyright
infringement, which usurps it.'"
The fact that your usecreates or improves the market for the original work will
favor a finding for fair use on this factor. See Nunez, 235 F.3d at25 (finding fair

3. use when the publication of nude photos actually stirred the controversy that
created their marketvalue and there was no evidence that the marketexisted
beforehand).
In summary, although courts will balance all four factors when assessing fair use,
the fair use defense is most likely to apply when the infringing useinvolves
criticism, comment, news reporting, teaching, scholarship, or research. In
addition, some general rules of thumb can be helpful in analyzing fair use:
 A use that transforms theoriginal work in someway is more likely to be a
fair use;
 A non-profituseis more likely to be considered a fair use than a for-profit
use;
 A shorter excerpt is more likely to be a fair usethan a long one; and
 A use that cannot act as a replacement for the original work is morelikely
to be a fair use than one that can serveas a replacement.