For as long as a copyright is valid, only the copyright owner and those authorized by the copyright owner may reproduce, distribute, perform, display, broadcast, or create a derivative work based on the protected work. Granting those exclusive rights to creators, at least in theory, also serves the larger goal of stimulating and encouraging creativity for the public good. However, imposing limitations on expression (by granting the aforementioned exclusive rights to creators) inherently conflicts with another important legal tenet, the right to free speech.
Enter the fair use doctrine, which operates as a safeguard for the First Amendment by allowing the use of copyright materials without permission from the copyright holder in certain circumstances, such as criticism, comment, news reporting, teaching, scholarship, or research. The fair use doctrine has become an increasingly important limitation to the exclusive rights we grant to authors, but it has also created confusion. This article defines fair use and walks through the four factors used by courts to determine whether a given use is a so-called fair use.
What is Fair Use?
The U.S. Copyright Act tells us that “…the fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright…”. Fair use has traditionally been recognized as an affirmative defense to copyright and not a right. What this means is that the accused infringer has the duty to prove that their use is excused after the copyright holder has made a case for infringement. In other words, fair use is usually a shield, not a sword, which, along with the murky nature of the fair use analysis, makes it a risky doctrine on which to rely.
Although originally judicially created, 17 U.S.C. § 107 now lists the elements that are used to determine fair use. These are: (1) the purpose and character of the use; (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. The fact that the copied work is unpublished may weigh against fair use, but is not itself dispositive in barring a finding of fair use. None of these listed factors are determinative and must all be weighed together in determining whether a use is fair, and other factors may be considered.
The Purpose and Character of Use
This factor often also includes an analysis as to whether the use of the existing work was “transformative,” i.e., essentially, whether the existing work is merely duplicated in the new work, or whether the new work incorporates the existing work in a way that results in a new statement. Transformative use is not an absolute requirement for a finding of fair use, but it is considered by some to be the most important factor of the four. Parody often involves holding an existing work up to ridicule or comment in a way that is transformative of the existing work. In one particularly notorious case, a 2 Live Crew by the rap group 2 Live Crew featured bawdy lyrics set to the tune of Roy Orbison’s “Oh, Pretty Woman.” The Court concluded that the use was a transformative use because the song could reasonably be perceived as commenting on or criticizing the original to some degree. Whether the parody is in good or bad taste is irrelevant – the standard is whether or not it may reasonably be perceived as parodic.
Other aspects that are taken into consideration are the purpose of the use: is it for commercial or educational purposes? Is it a critique? Is it for news? Commercial use tends to weigh against a finding of fair use. Use for education, critique, and news tend to weigh in favor of finding of fair use. Again, none of these facts alone is dispositive in establishing whether a use is fair, but they are weighed in the analysis. For example, 2 Live Crew’s parody was for commercial use, but it was still found to be fair use because other factors were enough to weigh in favor of fair use. Likewise, non-commercial or educational uses are not always presumptively fair uses.
The Nature of the Copyrighted Work
In determining whether a given use of an existing work is a fair use, courts will also look at what kind of work was copied. If the copied work is non-fiction (e.g., a biography, a scientific study, etc.), then there is a stronger argument for a finding of fair use. Copyright does not extend to the protection of facts. Fiction, on the other hand, tends to involve more originality and creativity on the author’s part, and so weighs against a finding of fair use where that creative work is used without the author’s permission. However, while the facts contained within the biography may not qualify for copyright protection, the specific ordering and selection of the words and sentences have a degree of originality that can be protectable. Whether the work is published or unpublished is also a relevant factor. Taking from a published work weighs in favor of fair use. Taking from an unpublished work is not dispositive, but weighs against a finding of fair use on a theory that an author should have the right to control the first public appearance of their work.
The Amount and Substantiality of Portion Used
One common misconception about this factor is that there is a bright-line rule where anything taken that is under 30 seconds or a certain word count presumptively counts as fair use. Yes, the more you take, the less likely it is to be fair use, but the quality or substantiality of the portion taken also matters. Taking the “heart” of the work weighs against a finding of fair use. In one case, an editor of a magazine received a copy of President Gerald Ford’s unpublished memoir from a secret, unauthorized third party. A 2,250-word news story was printed in The Nation, featuring about 300 words copied verbatim from the manuscript. The quoted excerpts concerned Ford’s observations and reflections about President Richard Nixon. Although 300 words was not a substantial part of the total manuscript, the taking still weighed against a finding of fair use because it was essentially “the heart of the work” as “the most interesting and moving parts of the entire manuscript.” Put differently, five seconds of use may still be found to have infringed a copyright, while two minutes of use may be a fair use, depending on the quality or substantiality of the portion taken, as well as how other fair use factors come into play.
The Effect of the Use Upon the Potential Market
Courts also look at the effect of the taking on the copyright holder in the market. For example, with the taking of parts of President Ford’s memoir, the copyright owner suffered economic harm since they could no longer market the first serialization rights of the manuscript following The Nation’s publication. Depriving an author from earnings, whether from their current or potential markets, weighs against a finding of fair use. Of course, analysis of this factor differs a bit for parody or critique. A parody can ridicule the original work to the point that it can no longer be taken seriously. A bad review can kill the demand for the work. However, these are not harms that are recognized under the Copyright Act. The harm that is relevant is where the original is likely to be substituted by the borrowing work.
Given that it ultimately rests on a balancing of four factors, fair use is not always easily predictable, and there are no bright-line rules. Depending on the stakes of a given situation, it may be appropriate to consult with an attorney to help you with this analysis.
 17 U.S.C. § 106
 17 U.S.C. § 107.
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 599 (1994) (“Fair use is an affirmative defense, so doubts about whether a given use is fair should not be resolved in favor of the self-proclaimed parodist.”). The 9th Circuit in Lenz recently stated otherwise in the context of the Digital Millennium Copyright Act (DMCA): “[W]e hold – for the purposes of the DMCA – fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses …. a type of non-infringing use, fair use is ‘authorized’ by the law…” At least in reference to any accused content on the Internet, a copyright holder must at least consider fair use before filing a takedown notice. Lenz v. Universal Music Corp., 801 F.3d 1126, 1133 (2015).
 Lydia Pallas Loran, Fair Use: An Affirmative Defense?, 90 Wash. L. Rev. 685, 690 (2015).
 Harper & Row v. Nation Enters., 471 U.S. 539, 551 (1985).
 17 U.S.C. § 107.
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994).
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583 (1994).
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 582 (1994).
 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 594(1994).
 See Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 344-345 (1991); see also 17 U.S.C. § 102(b) (“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work”).
 Salinger v. Random House, Inc., 811 F.2d 90, 95 (2nd Cir. 1987).
 Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 564 (1985).
 Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 569 (1985).
 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 591 (1994).
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 593 (1994).