What’s up with Fair Use? Part II: The first factor

Last time, we looked at a quick overview of the Fair Use defense to copyright infringement. It’s no surprise that Fair Use has been called “the most troublesome in the whole law of copyright.” This time, we will delve a little deeper into the first of four factors that courts use to determine whether or not an infringing use is fair.

The Purpose and Character of the Use:

It’s important to remember that no one factor is dispositive.The first factor, “The purpose and character of the use,” comes (as do the others) from Section 107 of the copyright statute. While this text on its own doesn’t point to what particular purposes would be fair, the text that comes right before it in the law does provide a clue. These purposes include “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research.” However, this list is not exhaustive, so a court may find that other types of usage fall within the boundaries of Fair Use. It’s important to remember that no one factor is dispositive. Just because an infringing use is part of a news report, it is not automatically a “Fair Use.” See, for example, the Harper & Row v. Nation Enterprises Supreme Court decision. Even though a magazine used only 300 words of a memoir written by Gerald Ford as part of a news report, it was found to be an infringement on other grounds. So, essentially, a finding in favor of an infringer on this first factor merely “tilts” the balance in their favor. Depending on the outcome of the other factors, the use could still be found to be an infringement.

Commercial Use:

Simply being a commercial use does not automatically mean that infringement will be found.Another part of the discussion around the first factor concerns whether or not the infringing use was “commercial.” Whether or not a use is commercial is decided quite broadly. Even a television program that did not contain any advertising was found to be commercial, due to the possibility of a ratings boost for the network. News reporting could also be found to be commercial, due to the motive to make a profit. Simply being a commercial use does not automatically mean that infringement will be found. However, it is certainly a big mark against the infringer during the analysis. Success on the other factors could bring a court’s analysis back to a finding of Fair Use, though. fair_use_first_factor_02

Transformative Use:

In fact, the more strongly the use is transformative, the less likely it is that other factors…will matter.The last big topic under this first factor is the question of “transformative use.” Essentially, a transformative use means that the infringer has taken the copyrighted material and added some original contribution to the work, rather than simply copying it. The Supreme Court has said that, though this can be helpful in deciding the balance of this first factor, it is not “wholly determinative.” In fact, the more strongly the use is transformative, the less likely it is that other factors, like the commercial nature of the use, will matter. The Supreme Court states that “the goal of copyright . . . is generally furthered by the creation of transformative works.” Clearly, they are looking for this in an infringing use in order to find that the use was fair. Infringers should be careful, however, since many jurisdictions have different views on what constitutes a transformative use. Even within a single jurisdiction there are many decisions that seem to contradict each other. When looking to make use of another’s copyrighted work, it is inevitable that a Fair Use analysis should be performed. However, due to the many nuances of such an analysis, you may want to contact a copyright attorney to analyze the facts and the case law surrounding it. Photographs courtesy of Flickr user Kevin Dooley via CC license

Zachary Strebeck

Zachary Strebeck

Leave a Reply

Your email address will not be published.

Table of Contents

Check out these other posts:

Get my FREE
Video Game Law
eBooks!

Just sign up below to get my FREE eBooks, game law checklists, and more!

I will never sell your personal information. 
Whitelist [email protected] to make sure you receive the emails!

Got questions about your Game Publishing Deal?
Let's talk.

Make an appointment for a FREE consultation below and we can discuss how I can help you avoid the pitfalls in your game publishing contract!