Fair Use

Navigating the Vague Issue of Fair Use

By Stephen Swalsky, PactUS Expert

I would have my own island by now if I had a dollar for every time someone asked me “I can ‘Fair Use’ this (insert ultra-sensitive copyright material owned by litigious hyper-alert owner), right?”.  While we all love the notion of not having to pay for the use of certain materials in our productions, there are enormous caution flags that must be raised before it can be conclusively stated that the planned usage falls under “Fair Use”.  When in doubt, and everything should be treated as “in doubt”, ask your production counsel first!

What is Fair Use?

At its essence, a “Fair Use” is the copying/using/incorporating material protected by copyright for a limited and transformative purpose.  This purpose could be parody, criticism, or providing commentary.  In these circumstances and, assuming it is a fair use, does not require you to seek the approval of the copyright holder and the associated payment of licensing fees.  But even if you are convinced that you are in the clear to go ahead, speak with your counsel and get their thoughts.  It may be more cost effective to pay to license the item now than to have to litigate to be proven right (or wrong) years down the road.

At the core of deciding if a use of materials is a fair use and not an infringement of a copyright holder’s rights, is the notion of “transformative” use.  There are few concepts in law that are more ambiguous, vague and the source of lawyer fee generation.  It is a notion that is free-flowing, open to interpretation and often at the caprice of judges who “know it when they see it”.  Certainty via explicit and clear rules is not readily available as courts have often taken a very open-minded approach to so as to allow for usage of materials within open boundaries.   Always bear in mind that what may be considered a fair use today, was possibly not yesterday and may not be again tomorrow.

Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and it identifies certain types of uses – such as criticism, comment, news reporting, teaching, scholarship, and research – as examples of activities that may qualify as fair use.  Most of the fair use legal holdings and examination falls into the categories of commentary and criticism, or parody.

Commentary and Criticism

If you are producing a criticism of a copyright work such as a review of a movie or a book, you are allowed to utilize some of the work in producing your piece.  Feel free within reason (and I’ll get to the “within reason” aspect shortly) to quote or include a few lines from a recently released song in your critique of a new CD, summarize a medical report that provides newsworthy findings, use a movie snippet to provide a retrospective on the career of a recently deceased actor, etc.  In the United States, the courts tend to err on the side of providing knowledge, benefit and information to the public.  However, and it is a huge “HOWEVER”, determination of whether the usage is a fair one is very fact specific.


Parody is a creative piece that pokes fun at another well-known work and by its nature requires a sizable taking of the original that is being made fun of.  Think of all of the times that The Simpsons or Family Guy has satirized public figures, movies, politics, etc.  The parody umbrella allows for a pretty sizable usage of the original to make its point and deliver its payload of humor.

How Does The Court Know If a Use is Fair?

Unfortunately, the best answer is “It depends”.  Whether a use is fair depends on the specific facts of the use.  Often that means having a court decide as to whether you stayed in-bounds or pushed too far and judges have a great deal of latitude in looking at the facts and factors in making a decision that they deem right.  Juries and judges make the facts fit the law or the law fit the facts.  As a general framework, the federal courts look to Section 107 and the following factors in evaluating a question of fair use:

•   Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes:  Courts are more likely to find against you if you are making a profit from the new work.  They are more sympathetic to nonprofit educational and noncommercial uses.  Further muddying the waters, courts have found that not all nonprofit education and noncommercial uses are fair nor are all commercial uses not fair.  To help your cause, it is better if your use is transformative or one that adds something new, with a different purpose or changed character, and do not substitute for the original use of the work. It further makes your “transformative use” a fair use case if you can claim that your purpose was education and research as the work was subject of critical commentary and analysis. Transformative use is a grey area of subtlety and degree that is often a challenge for courts to determine.

•   Nature of the copyrighted work:  Does the taken work and its new use encourage creative expression?  Using a factual work (such as a biography, technical, or how-to article or news item) is more likely viewed as a fair use than using a more creative or imaginative work (such as a fictional novel, movie, or song).  Under the notion of public benefit, you have more wiggle room when copying from nonfictional sources than from fictional ones.  Also, because courts will protect creators when it comes to the initial presentation of their expressions, the courts take a dimmer view of claiming a fair use of an unpublished piece.  Your case is stronger when working with previously published materials.

•   Amount and substantiality of the portion used in relation to the copyrighted work as a whole:  Less is More; and courts will look at both the quantity and quality of the copyrighted material that was used.  You are more likely to have a successful fair use claim if your usage is just a small portion of the original work versus a substantial chunk.  It should be noted that, again, determinations are fact specific and even a small taking of the heart of the work could be found improper.  Tread carefully when using the opening notes of “Stairway to Heaven” now that the Spirit vs. Led Zeppelin case has been settled and the case is receding from the public attention (well, except for music geeks like me).  The opening run of the song was at the core of the lawsuit and was certainly an element that was of public interest and timely.  With the lawsuit being settled and over, it would not be wise to use the song’s beginning riff a year or two down the road and expect to still fall under a fair use protection. 

Also note again that the less-is-more rule isn’t necessarily true in parody cases.  Parody allows for a great deal of the original work including its core and courts have found that the taking of the heart of the subject work is the aim of parody.

•   Effect of the use upon the potential market for or value of the copyrighted work:  Courts do not like to see the original copyright owner being deprived of income.  It is problematic for your fair use argument if your unlicensed use harms the existing or future market for the copyright owner’s original work, even if your usage isn’t a direct competitor.  Parody has slightly different rules in that courts will look to see if the usage fully supplants the demand for the original.  In essence, being too good a parody can make people forget the original and that might prove problematic for you.

Other unofficial factors may also impact a fair use question.  Courts evaluate fair use claims on a case-by-case basis, and there is no formula as to the maximum amount or percentage or amount of a work that can be used without permission.  Cases often contradict one another and courts, judges and juries bring in their own biases, and subjective opinions as to what is fair, what is right, and what is wrong.

If you have concerns that your use of unlicensed materials may or not be a fair use, definitely do your homework and check with your production counsel as to whether you have protections or should you need to tread carefully. You can find me on my island awaiting your fair use query.