Fair Use Doctrine (Intellectual Property Law Series)


THIS CASEBOOK contains a selection of 99 U. S. Court of Appeals decisions that discuss, analyze and apply the doctrine of fair use. The selection of decisions spans from 2000 to the date of publication.

The Copyright Act principally offers copyright protection for “original works of authorship.” 17 U.S.C. § 102(a). Pursuant to the statute’s terms, authors may control the copying of their original works and also retain “the exclusive rights” to “prepare derivative works based upon the copyrighted work.” 17 U.S.C. § 106. Thus, unauthorized derivative works are typically afforded no copyright protection because they unlawfully infringe the exclusive rights of the original author. Id.; see also id. § 103 (“[P]rotection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.”). [Footnote omitted.] Keeling v. Hars, (2nd Cir. 2015).

The doctrine of “fair use” constitutes a critical and long-standing limitation on the exclusive rights of the original copyright owner. Though only made a part of statutory copyright law in 1976, “[f]rom the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘to promote the Progress of Science and useful Arts.'” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (alterations omitted) (quoting U.S. CONST., Art. I, § 8, cl. 8). Under Section 107 of the Copyright Act, certain unauthorized “fair use of a copyrighted work,” for purposes such as criticism, comment, news reporting, teaching, scholarship and research, “is not an infringement of copyright” and thus is lawful. 17 U.S.C. § 107. While parody is not expressly mentioned in the statute, the Supreme Court has instructed that “parody, like other comment or criticism, may claim fair use under § 107.” Campbell, 510 U.S. at 579. [Footnotes omitted.] Keeling v. Hars, ibid.

In deciding whether a defendant’s use of a work constitutes fair use, courts must weigh the following four factors: (1) the purpose and character of the allegedly infringing use; (2) the nature of the copyrighted work; (3) the amount of the copyrighted work used; (4) and the effect of the use on the potential market or value of the copyrighted work. Id. These four statutory factors are not to be treated in isolation from one another. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, 114 S. Ct. 1164, 1170-71 (1994). Rather, they are “[a]ll are to be explored, and the results weighed together, in light of the purposes of copyright.” Id., at 578, 114 S. Ct. at 1171. [Footnote omitted.] Katz v. Google Inc., (11th Cir. 2015).

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