2 Copyright and Libraries: Fair Use

Sandra Enimil

Constitutional and Statutory Law

Case Law

Commentary

Works Consulted

Author

Constitutional and Statutory Law

U.S. Const., Art. I, § 8, cl. 8. [The Congress shall have power] To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

U.S. Copyright Law, Title 17, Chapter 1, §107: Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(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 for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Case law

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)

JUSTICE SOUTER delivered the opinion of the Court.

We are called upon to decide whether 2 Live Crew’s commercial parody of Roy Orbison’s song, “Oh, Pretty Woman,” may be a fair use within the meaning of the Copyright Act of 1976, 17 U. S. C. § 107 (1988 ed. and Supp. IV). Although the District Court granted summary judgment for 2 Live Crew, the Court of Appeals reversed, holding the defense of fair use barred by the song’s commercial character and excessive borrowing. Because we hold that a parody’s commercial character is only one element to be weighed in a fair use enquiry, and that insufficient consideration was given to the nature of parody in weighing the degree of copying, we reverse and remand.

I

In 1964, Roy Orbison and William Dees wrote a rock ballad called “Oh, Pretty Woman” and assigned their rights in it to respondent Acuff-Rose Music, Inc. See Appendix A, infra, at 594. Acuff-Rose registered the song for copyright protection.

Petitioners Luther R. Campbell, Christopher Wongwon, Mark Ross, and David Hobbs are collectively known as 2 Live Crew, a popular rap music group. In 1989, Campbell wrote a song entitled “Pretty Woman,” which he later described in an affidavit as intended, “through comical lyrics, to satirize the original work. . . .” App. to Pet. for Cert. 80a. On July 5, 1989, 2 Live Crew’s manager informed Acuff-Rose that 2 Live Crew had written a parody of “Oh, Pretty Woman,” that they would afford all credit for ownership and authorship of the original song to Acuff-Rose, Dees, and Orbison, and that they were willing to pay a fee for the use they wished to make of it. Enclosed with the letter were a copy of the lyrics and a recording of 2 Live Crew’s song. See Appendix B, infra, at 595. Acuff-Rose’s agent refused permission, stating that “I am aware of the success enjoyed by `The 2 Live Crews’, but I must inform you that we cannot permit the use of a parody of `Oh, Pretty Woman.'” App. to Pet. for Cert. 85a. Nonetheless, in June or July 1989, 2 Live Crew released records, cassette tapes, and compact discs of “Pretty Woman” in a collection of songs entitled “As Clean As They Wanna Be.” The albums and compact discs identify the authors of “Pretty Woman” as Orbison and Dees and its publisher as Acuff-Rose.

Almost a year later, after nearly a quarter of a million copies of the recording had been sold, Acuff-Rose sued 2 Live Crew and its record company, Luke Skyywalker Records, for copyright infringement. The District Court granted summary judgment for 2 Live Crew, reasoning that the commercial purpose of 2 Live Crew’s song was no bar to fair use; that 2 Live Crew’s version was a parody, which “quickly degenerates into a play on words, substituting predictable lyrics with shocking ones” to show “how bland and banal the Orbison song” is; that 2 Live Crew had taken no more than was necessary to “conjure up” the original in order to parody it; and that it was “extremely unlikely that 2 Live Crew’s song could adversely affect the market for the original.” 754 F. Supp. 1150, 1154-1155, 1157-1158 (MD Tenn. 1991). The District Court weighed these factors and held that 2 Live Crew’s song made fair use of Orbison’s original. Id., at 1158-1159.

The Court of Appeals for the Sixth Circuit reversed and remanded. 972 F. 2d 1429, 1439 (1992). Although it assumed for the purpose of its opinion that 2 Live Crew’s song was a parody of the Orbison original, the Court of Appeals thought the District Court had put too little emphasis on the fact that “every commercial use . . . is presumptively . . . unfair,” Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 451 (1984), and it held that “the admittedly commercial nature” of the parody “requires the conclusion” that the first of four factors relevant under the statute weighs against a finding of fair use. 972 F. 2d, at 1435, 1437. Next, the Court of Appeals determined that, by “taking the heart of the original and making it the heart of a new work,” 2 Live Crew had, qualitatively, taken too much. Id., at 1438. Finally, after noting that the effect on the potential market for the original (and the market for derivative works) is “undoubtedly the single most important element of fair use,” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 566 (1985), the Court of Appeals faulted the District Court for “refus[ing] to indulge the presumption” that “harm for purposes of the fair use analysis has been established by the presumption attaching to commercial uses.” 972 F. 2d, at 1438-1439. In sum, the court concluded that its “blatantly commercial purpose . . . prevents this parody from being a fair use.” Id., at 1439.

We granted certiorari, 507 U. S. 1003 (1993), to determine whether 2 Live Crew’s commercial parody could be a fair use.

II

It is uncontested here that 2 Live Crew’s song would be an infringement of Acuff-Rose’s rights in “Oh, Pretty Woman,” under the Copyright Act of 1976, 17 U. S. C. § 106 (1988 ed. and Supp. IV), but for a finding of fair use through parody. From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, “[t]o promote the Progress of Science and useful Arts. . . .” U. S. Const., Art. I, § 8, cl. 8. For as Justice Story explained, “[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.” Emerson v. Davies, 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845). Similarly, Lord Ellenborough expressed the inherent tension in the need simultaneously to protect copyrighted material and to allow others to build upon it when he wrote, “while I shall think myself bound to secure every man in the enjoyment of his copy-right, one must not put manacles upon science.” Carey v. Kearsley, 4 Esp. 168, 170, 170 Eng. Rep. 679, 681 (K. B. 1803). In copyright cases brought under the Statute of Anne of 1710, English courts held that in some instances “fair abridgements” would not infringe an author’s rights, see W. Patry, The Fair Use Privilege in Copyright Law 6-17 (1985) (hereinafter Patry); Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990) (hereinafter Leval), and although the First Congress enacted our initial copyright statute, Act of May 31, 1790, 1 Stat. 124, without any explicit reference to “fair use,” as it later came to be known,[7] the doctrine was recognized by the American courts nonetheless.

In Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901) (CCD Mass. 1841), Justice Story distilled the essence of law and methodology from the earlier cases: “look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” Id., at 348. Thus expressed, fair use remained exclusively judge-made doctrine until the passage of the 1976 Copyright Act, in which Justice Story’s summary is discernible:

Ҥ 107. Limitations on exclusive rights: Fair use

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

“(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 for or value of the copyrighted work.

“The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” 17 U. S. C. § 107 (1988 ed. and Supp. IV).

Congress meant § 107 “to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way” and intended that courts continue the common-law tradition of fair use adjudication. H. R. Rep. No. 94-1476, p. 66 (1976) (hereinafter House Report); S. Rep. No. 94-473, p. 62 (1975) (hereinafter Senate Report). The fair use doctrine thus “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Stewart v. Abend, 495 U. S. 207, 236 (1990) (internal quotation marks and citation omitted).

The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis. Harper & Row, 471 U. S., at 560; Sony, 464 U. S., at 448, and n. 31; House Report, pp. 65-66; Senate Report, p. 62. The text employs the terms “including” and “such as” in the preamble paragraph to indicate the “illustrative and not limitative” function of the examples given, § 101; see Harper & Row, supra, at 561, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses. Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright. See Leval 1110-1111; Patry & Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo Arts & Ent. L. J. 667, 685-687 (1993) (hereinafter Patry & Perlmutter).

A

The first factor in a fair use enquiry is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” § 107(1). This factor draws on Justice Story’s formulation, “the nature and objects of the selections made.” Folsom v. Marsh, supra, at 348. The enquiry here may be guided by the examples given in the preamble to § 107, looking to whether the use is for criticism, or comment, or news reporting, and the like, see § 107. The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersede[s] the objects” of the original creation, Folsom v. Marsh, supra, at 348; accord, Harper & Row, supra, at 562 (“supplanting” the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Leval 1111. Although such transformative use is not absolutely necessary for a finding of fair use, Sony, supra, at 455, n. 40, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, see, e. g., Sony, supra, at 478-480 (Blackmun, J., dissenting), and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

This Court has only once before even considered whether parody may be fair use, and that time issued no opinion because of the Court’s equal division. Benny v. Loew’s Inc., 239 F. 2d 532 (CA9 1956), aff’d sub nom. Columbia Broadcasting System, Inc. v. Loew’s Inc., 356 U. S. 43 (1958). Suffice it to say now that parody has an obvious claim to transformative value, as Acuff-Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107. See, e. g., Fisher v. Dees, 794 F. 2d 432 (CA9 1986) (“When Sonny Sniffs Glue,” a parody of “When Sunny Gets Blue,” is fair use); Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (SDNY), aff’d, 623 F. 2d 252 (CA2 1980) (“I Love Sodom,” a “Saturday Night Live” television parody of “I Love New York,” is fair use); see also House Report, p. 65; Senate Report, p. 61 (“[U]se in a parody of some of the content of the work parodied” may be fair use).

The germ of parody lies in the definition of the Greek parodeia, quoted in Judge Nelson’s Court of Appeals dissent, as “a song sung alongside another.” 972 F. 2d, at 1440, quoting 7 Encyclopedia Britannica 768 (15th ed. 1975). Modern dictionaries accordingly describe a parody as a “literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule,” or as a “composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous.” For the purposes of copyright law, the nub of the definitions, and the heart of any parodist’s claim to quote from existing material, is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works. See, e. g., Fisher v. Dees, supra, at 437; MCA, Inc. v. Wilson, 677 F. 2d 180, 185 (CA2 1981). If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing. See ibid.; Bisceglia, Parody and Copyright Protection: Turning the Balancing Act Into a Juggling Act, in ASCAP, Copyright Law Symposium, No. 34, p. 25 (1987).

The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioners’ suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair, see Harper & Row, 471 U. S., at 561. The Act has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned through its creative artifacts, or that a work may contain both parodic and nonparodic elements. Accordingly, parody, like any other use, has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law.

Here, the District Court held, and the Court of Appeals assumed, that 2 Live Crew’s “Pretty Woman” contains parody, commenting on and criticizing the original work, whatever it may have to say about society at large. As the District Court remarked, the words of 2 Live Crew’s song copy the original’s first line, but then “quickly degenerat[e] into a play on words, substituting predictable lyrics with shocking ones . . . [that] derisively demonstrat[e] how bland and banal the Orbison song seems to them.” 754 F. Supp., at 1155 (footnote omitted). Judge Nelson, dissenting below, came to the same conclusion, that the 2 Live Crew song “was clearly intended to ridicule the white-bread original” and “reminds us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance and is not necessarily without its consequences. The singers (there are several) have the same thing on their minds as did the lonely man with the nasal voice, but here there is no hint of wine and roses.” 972 F. 2d, at 1442. Although the majority below had difficulty discerning any criticism of the original in 2 Live Crew’s song, it assumed for purposes of its opinion that there was some. Id., at 1435-1436, and n. 8.

We have less difficulty in finding that critical element in 2 Live Crew’s song than the Court of Appeals did, although having found it we will not take the further step of evaluating its quality. The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived. Whether, going beyond that, parody is in good taste or bad does not and should not matter to fair use. As Justice Holmes explained, “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.” Bleistein v. Donaldson Lithographing Co., 188 U. S. 239, 251 (1903) (circus posters have copyright protection); cf. Yankee Publishing Inc. v. News America Publishing, Inc., 809 F. Supp. 267, 280 (SDNY 1992) (Leval, J.) (“First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed”) (trademark case).

While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew’s song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author’s choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works.

The Court of Appeals, however, immediately cut short the enquiry into 2 Live Crew’s fair use claim by confining its treatment of the first factor essentially to one relevant fact, the commercial nature of the use. The court then inflated the significance of this fact by applying a presumption ostensibly culled from Sony, that “every commercial use of copy-righted material is presumptively . . . unfair. . . .” Sony, 464 U. S., at 451. In giving virtually dispositive weight to the commercial nature of the parody, the Court of Appeals erred.

The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character. Section 107(1) uses the term “including” to begin the dependent clause referring to commercial use, and the main clause speaks of a broader investigation into “purpose and character.” As we explained in Harper & Row, Congress resisted attempts to narrow the ambit of this traditional enquiry by adopting categories of presumptively fair use, and it urged courts to preserve the breadth of their traditionally ample view of the universe of relevant evidence. 471 U. S., at 561; House Report, p. 66. Accordingly, the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness. If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities “are generally conducted for profit in this country.” Harper & Row, supra, at 592 (Brennan, J., dissenting). Congress could not have intended such a rule, which certainly is not inferable from the common-law cases, arising as they did from the world of letters in which Samuel Johnson could pronounce that “[n]o man but a blockhead ever wrote, except for money.” 3 Boswell’s Life of Johnson 19 (G. Hill ed. 1934).

Sony itself called for no hard evidentiary presumption. There, we emphasized the need for a “sensitive balancing of interests,” 464 U. S., at 455, n. 40, noted that Congress had “eschewed a rigid, bright-line approach to fair use,” id., at 449, n. 31, and stated that the commercial or nonprofit educational character of a work is “not conclusive,” id., at 448-449, but rather a fact to be “weighed along with other[s] in fair use decisions,” id., at 449, n. 32 (quoting House Report, p. 66). The Court of Appeals’s elevation of one sentence from Sony to a per se rule thus runs as much counter to Sony itself as to the long common-law tradition of fair use adjudication. Rather, as we explained in Harper & Row, Sony stands for the proposition that the “fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use.” 471 U. S., at 562. But that is all, and the fact that even the force of that tendency will vary with the context is a further reason against elevating commerciality to hard presumptive significance. The use, for example, of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence under the first factor of the fair use enquiry than the sale of a parody for its own sake, let alone one performed a single time by students in school. See generally Patry & Perlmutter 679-680; Fisher v. Dees, 794 F. 2d, at 437; Maxtone-Graham v. Burtchaell, 803 F. 2d 1253, 1262 (CA2 1986); Sega Enterprises Ltd. v. Accolade, Inc., 977 F. 2d 1510, 1522 (CA9 1992).

B

The second statutory factor, “the nature of the copy-righted work,” § 107(2), draws on Justice Story’s expression, the “value of the materials used.” Folsom v. Marsh, 9 F. Cas., at 348. This factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied. See, e. g., Stewart v. Abend, 495 U. S., at 237-238 (contrasting fictional short story with factual works); Harper & Row, 471 U. S., at 563-564 (contrasting soon-to-be-published memoir with published speech); Sony, 464 U. S., at 455, n. 40 (contrasting motion pictures with news broadcasts); Feist, 499 U. S., at 348-351 (contrasting creative works with bare factual compilations); 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 13.05[A][2] (1993) (hereinafter Nimmer); Leval 1116. We agree with both the District Court and the Court of Appeals that the Orbison original’s creative expression for public dissemination falls within the core of the copyright’s protective purposes. 754 F. Supp., at 1155-1156; 972 F. 2d, at 1437. This fact, however, is not much help in this case, or ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works.

C

The third factor asks whether “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” § 107(3) (or, in Justice Story’s words, “the quantity and value of the materials used,” Folsom v. Marsh, supra, at 348) are reasonable in relation to the purpose of the copying. Here, attention turns to the persuasiveness of a parodist’s justification for the particular copying done, and the enquiry will harken back to the first of the statutory factors, for, as in prior cases, we recognize that the extent of permissible copying varies with the purpose and character of the use. See Sony, supra, at 449-450 (reproduction of entire work “does not have its ordinary effect of militating against a finding of fair use” as to home videotaping of television programs); Harper & Row, supra, at 564 (“[E]ven substantial quotations might qualify as fair use in a review of a published work or a news account of a speech” but not in a scoop of a soon-to-be-published memoir). The facts bearing on this factor will also tend to address the fourth, by revealing the degree to which the parody may serve as a market substitute for the original or potentially licensed derivatives. See Leval 1123.

The District Court considered the song’s parodic purpose in finding that 2 Live Crew had not helped themselves overmuch. 754 F. Supp., at 1156-1157. The Court of Appeals disagreed, stating that “[w]hile it may not be inappropriate to find that no more was taken than necessary, the copying was qualitatively substantial. . . . We conclude that taking the heart of the original and making it the heart of a new work was to purloin a substantial portion of the essence of the original.” 972 F. 2d, at 1438.

The Court of Appeals is of course correct that this factor calls for thought not only about the quantity of the materials used, but about their quality and importance, too. In Harper & Row, for example, the Nation had taken only some 300 words out of President Ford’s memoirs, but we signaled the significance of the quotations in finding them to amount to “the heart of the book,” the part most likely to be newsworthy and important in licensing serialization. 471 U. S., at 564-566, 568 (internal quotation marks omitted). We also agree with the Court of Appeals that whether “a substantial portion of the infringing work was copied verbatim” from the copyrighted work is a relevant question, see id., at 565, for it may reveal a dearth of transformative character or purpose under the first factor, or a greater likelihood of market harm under the fourth; a work composed primarily of an original, particularly its heart, with little added or changed, is more likely to be a merely superseding use, fulfilling demand for the original.

Where we part company with the court below is in applying these guides to parody, and in particular to parody in the song before us. Parody presents a difficult case. Parody’s humor, or in any event its comment, necessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the tension between a known original and its parodic twin. When parody takes aim at a particular original work, the parody must be able to “conjure up” at least enough of that original to make the object of its critical wit recognizable. See, e. g., Elsmere Music, 623 F. 2d, at 253, n. 1; Fisher v. Dees, 794 F. 2d, at 438-439. What makes for this recognition is quotation of the original’s most distinctive or memorable features, which the parodist can be sure the audience will know. Once enough has been taken to assure identification, how much more is reasonable will depend, say, on the extent to which the song’s overriding purpose and character is to parody the original or, in contrast, the likelihood that the parody may serve as a market substitute for the original. But using some characteristic features cannot be avoided.

We think the Court of Appeals was insufficiently appreciative of parody’s need for the recognizable sight or sound when it ruled 2 Live Crew’s use unreasonable as a matter of law. It is true, of course, that 2 Live Crew copied the characteristic opening bass riff (or musical phrase) of the original, and true that the words of the first line copy the Orbison lyrics. But if quotation of the opening riff and the first line may be said to go to the “heart” of the original, the heart is also what most readily conjures up the song for parody, and it is the heart at which parody takes aim. Copying does not become excessive in relation to parodic purpose merely because the portion taken was the original’s heart. If 2 Live Crew had copied a significantly less memorable part of the original, it is difficult to see how its parodic character would have come through. See Fisher v. Dees, supra, at 439.

This is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot free. In parody, as in news reporting, see Harper & Row, supra, context is everything, and the question of fairness asks what else the parodist did besides go to the heart of the original. It is significant that 2 Live Crew not only copied the first line of the original, but thereafter departed markedly from the Orbison lyrics for its own ends. 2 Live Crew not only copied the bass riff and repeated it, but also produced otherwise distinctive sounds, interposing “scraper” noise, over-laying the music with solos in different keys, and altering the drum beat. See 754 F. Supp., at 1155. This is not a case, then, where “a substantial portion” of the parody itself is composed of a “verbatim” copying of the original. It is not, that is, a case where the parody is so insubstantial, as compared to the copying, that the third factor must be resolved as a matter of law against the parodists.

Suffice it to say here that, as to the lyrics, we think the Court of Appeals correctly suggested that “no more was taken than necessary,” 972 F. 2d, at 1438, but just for that reason, we fail to see how the copying can be excessive in relation to its parodic purpose, even if the portion taken is the original’s “heart.” As to the music, we express no opinion whether repetition of the bass riff is excessive copying, and we remand to permit evaluation of the amount taken, in light of the song’s parodic purpose and character, its transformative elements, and considerations of the potential for market substitution sketched more fully below.

D

The fourth fair use factor is “the effect of the use upon the potential market for or value of the copyrighted work.” § 107(4). It requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also “whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market” for the original. Nimmer § 13.05[A][4], p. 13-102.61 (footnote omitted); accord, Harper & Row, 471 U. S., at 569; Senate Report, p. 65; Folsom v. Marsh, 9 F. Cas., at 349. The enquiry “must take account not only of harm to the original but also of harm to the market for derivative works.” Harper & Row, supra, at 568.

Since fair use is an affirmative defense, its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets. In moving for summary judgment, 2 Live Crew left themselves at just such a disadvantage when they failed to address the effect on the market for rap derivatives, and confined themselves to uncontroverted submissions that there was no likely effect on the market for the original. They did not, however, thereby subject themselves to the evidentiary presumption applied by the Court of Appeals. In assessing the likelihood of significant market harm, the Court of Appeals quoted from language in Sony that “`[i]f the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.'” 972 F. 2d, at 1438, quoting Sony, 464 U. S., at 451. The court reasoned that because “the use of the copyrighted work is wholly commercial, . . . we presume that a likelihood of future harm to Acuff-Rose exists.” 972 F. 2d, at 1438. In so doing, the court resolved the fourth factor against 2 Live Crew, just as it had the first, by applying a presumption about the effect of commercial use, a presumption which as applied here we hold to be error.

No “presumption” or inference of market harm that might find support in Sony is applicable to a case involving something beyond mere duplication for commercial purposes. Sony‘s discussion of a presumption contrasts a context of verbatim copying of the original in its entirety for commercial purposes, with the noncommercial context of Sony itself (home copying of television programming). In the former circumstances, what Sony said simply makes common sense: when a commercial use amounts to mere duplication of the entirety of an original, it clearly “supersede[s] the objects,” Folsom v. Marsh, supra, at 348, of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur. Sony, supra, at 451. But when, on the contrary, the second use is transformative, market substitution is at least less certain, and market harm may not be so readily inferred. Indeed, as to parody pure and simple, it is more likely that the new work will not affect the market for the original in a way cognizable under this factor, that is, by acting as a substitute for it (“supersed[ing] [its] objects”). See Leval 1125; Patry & Perlmutter 692, 697-698. This is so because the parody and the original usually serve different market functions. Bisceglia, ASCAP, Copyright Law Symposium, No. 34, at 23.

We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. Because “parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically,” B. Kaplan, An Unhurried View of Copyright 69 (1967), the role of the courts is to distinguish between “[b]iting criticism [that merely] suppresses demand [and] copyright infringement[, which] usurps it.” Fisher v. Dees, 794 F. 2d, at 438.

This distinction between potentially remediable displacement and unremediable disparagement is reflected in the rule that there is no protectible derivative market for criticism. The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop. Yet the unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own productions removes such uses from the very notion of a potential licensing market. “People ask . . . for criticism, but they only want praise.” S. Maugham, Of Human Bondage 241 (Penguin ed. 1992). Thus, to the extent that the opinion below may be read to have considered harm to the market for parodies of “Oh, Pretty Woman,” see 972 F. 2d, at 1439, the court erred. Accord, Fisher v. Dees, supra, at 437; Leval 1125; Patry & Perlmutter 688-691.

In explaining why the law recognizes no derivative market for critical works, including parody, we have, of course, been speaking of the later work as if it had nothing but a critical aspect (i. e., “parody pure and simple,” supra, at 591). But the later work may have a more complex character, with effects not only in the arena of criticism but also in protectible markets for derivative works, too. In that sort of case, the law looks beyond the criticism to the other elements of the work, as it does here. 2 Live Crew’s song comprises not only parody but also rap music, and the derivative market for rap music is a proper focus of enquiry, see Harper & Row, supra, at 568; Nimmer § 13.05[B]. Evidence of substantial harm to it would weigh against a finding of fair use, because the licensing of derivatives is an important economic incentive to the creation of originals. See 17 U. S. C. § 106(2) (copyright owner has rights to derivative works). Of course, the only harm to derivatives that need concern us, as discussed above, is the harm of market substitution. The fact that a parody may impair the market for derivative uses by the very effectiveness of its critical commentary is no more relevant under copyright than the like threat to the original market.

Although 2 Live Crew submitted uncontroverted affidavits on the question of market harm to the original, neither they, nor Acuff-Rose, introduced evidence or affidavits addressing the likely effect of 2 Live Crew’s parodic rap song on the market for a nonparody, rap version of “Oh, Pretty Woman.” And while Acuff-Rose would have us find evidence of a rap market in the very facts that 2 Live Crew recorded a rap parody of “Oh, Pretty Woman” and another rap group sought a license to record a rap derivative, there was no evidence that a potential rap market was harmed in any way by 2 Live Crew’s parody, rap version. The fact that 2 Live Crew’s parody sold as part of a collection of rap songs says very little about the parody’s effect on a market for a rap version of the original, either of the music alone or of the music with its lyrics. The District Court essentially passed on this issue, observing that Acuff-Rose is free to record “whatever version of the original it desires,” 754 F. Supp., at 1158; the Court of Appeals went the other way by erroneous presumption. Contrary to each treatment, it is impossible to deal with the fourth factor except by recognizing that a silent record on an important factor bearing on fair use disentitled the proponent of the defense, 2 Live Crew, to summary judgment. The evidentiary hole will doubtless be plugged on remand.

III

It was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crew’s parody of “Oh, Pretty Woman” rendered it presumptively unfair. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm, in determining whether a transformative use, such as parody, is a fair one. The court also erred in holding that 2 Live Crew had necessarily copied excessively from the Orbison original, considering the parodic purpose of the use. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Commentary

History of Fair Use in the U.S.

Before delving into copyright history in the United States, it should be acknowledged that indigenous societies existed before the beginning of the colonial occupation that would eventually become the U.S. There were and are numerous indigenous societies, so it is difficult to outline practices of each community, but generally indigenous practices differed from the individualistic nature of the colonists (Grad 214). The indigenous had and have their own laws, including those around intellectual property. The distinctions from what developed and exists in the U.S. are in how intellectual property is shared, the need for fixation, and who can experience the content and in what ways. Dr. Robin Gray argues that the ideas around knowledge, ownership, and control for indigenous communities often provide sharp contrast, and it is difficult to see how they could be in harmony. Copyright protects the product of knowledge rather than knowledge itself, whereas knowledge is of greater importance to indigenous communities (Gray).

Although the U.S. colonies fought for independence from England, the young nation found harmony and ease in using laws from their former colonial master as a model for newly implemented laws in the U.S. Intellectual property rights and protections were largely copied from the Commonwealth and based on individual notions of capitalism and profit. Indigenous laws on intellectual property were not included or incorporated. The Statute of Anne of 1710 served as the template for the United States’ first Copyright Act of 1790 (Davis), and the concept of fair use was also borrowed from England (Sag 1372).

Fair use had a long history before its codification in U.S. Copyright law in 1976, with 100 years of copyright litigation in English courts prior to the U.S. case of Folsom v. Marsh (Sag 1373). In 1841, the concept of fair use was introduced in Folsom v. Marsh in a decision by Justice Joseph Story (Bracha). In Folsom v. Marsh, Justice Story established the fair use factors we know today. Publisher Charles Folsom, who had published a twelve-volume edition of George Washington’s biography edited by Jared Sparks, sued Reverend Charles Wentworth Upham for “piracy of the copyright” for copying 353 pages from the biography to make a much shorter biographical work. The defendant made several arguments, including that the original work was not copyrightable and that even if the work were covered by copyright, given Washington’s former occupation as president of the U.S., the work should be in the public domain. The defendant also argued that his use was fair because he created a new work (Folsom v. Marsh 345). The court ruled that the work was copyrightable and that taking a small portion of a larger work could be considered infringement on the rights of the copyright owner. With this ruling, derivative works became one of the exclusive rights of copyright owners. [Note: for discussion of section 106 exclusive rights, see the Commentary section, “Exclusive Rights in Copyrighted Works,” in the Copyright Basics chapter in this textbook at: mlpp.pressbooks.pub/librarylaw/chapter/chapter-copyright-basics/#106]   On the matter of fair use, the court considered English common law and the defendant’s arguments and found that the defendant’s use was not fair (Bracha). The finding notwithstanding, Justice Story provided these factors for consideration:

  • the nature and objects of the selections made,
  • the quantity and value of the materials used, and
  • the degree in which the use may prejudice the sale, diminish the profits, or supersede the objects of the original work (Folsom v. Marsh 348).

Justice Story’s factors have been codified as the four fair use factors in section 107.

Section 107 Fair Use

As noted above, fair use had a rich history long before its inclusion in the 1976 Act. England, now the United Kingdom, eventually codified their version as “fair dealing.” The concepts share many similarities but are different. As discussed in other chapters in this textbook, there are several sections of U.S. copyright law that allow, protect, and engage the work done in libraries and archives. Some sections specifically address the needs of communities using materials in schools, libraries, and archives (see in particular section 108 covered in Copyright and Libraries: Resource Sharing at mlpp.pressbooks.pub/librarylaw/chapter/copyright-ill/#commentary and section 110 covered in Copyright and Education at mlpp.pressbooks.pub/librarylaw/chapter/copyright-education/#110). Fair use is a provision in U.S. copyright law that is available in a multitude of circumstances. Fair use allows use of copyrighted materials without seeking permission to use the content.

Depending on whom you ask, fair use is a right available to users of copyrighted content or a defense to possible or actual litigation for the use of copyrighted content. What is the difference? Those who believe fair use is a right look to U.S. copyright laws and point to Section 107 which defines fair use. Those who think it is a defense feel it is a response to potential litigation. Both arguments are accurate; fair use is both a right and a defense (Hathcock).

Fair use is codified in section 107 of the U.S. Copyright Act of 1976. This act finally provided a legal statute for the concept of fair use, which had been in practice under common law (custom and legal precedent as opposed to a statutory provision) since the mid-19th century. As described in section 107, fair use of a work, still covered by copyright, is not copyright infringement. It is not infringement, even if the use utilizes any of the exclusive rights of the copyright holder (as outlined in section 106 of the U.S. Copyright Act, see mlpp.pressbooks.pub/librarylaw/chapter/chapter-copyright-basics/#106). Fair use applies to published and unpublished works. Section 107 mentions potential uses including: criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, and research purposes. Fair use may also be relied upon beyond these categories.

The 1976 act established a four-factor (expanded from the factors established in Folsom v. Marsh) analysis that must be considered to determine whether a use may be fair use.

  • (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • (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 for or value of the copyrighted work.

All four factors are important and scrutinized by the courts. Fair use is broad, which has lead to a great deal of mythology surrounding it. As technology improves and advances use of copyrighted works (digitization, digital humanities, etc.) beyond what existed in 1976, attempts to distill and make sense of fair use has led to inaccuracies, such as “educational uses are always fair” or “commercial uses cannot be fair” or “less than 10% is fair use.” In attempts to make fair use more concrete, some institutions might adopt practices that limit the ways they make use of fair use, such as relying on quantifiable percentages or portions of works. Some “best practices” and guidelines recommend using smaller or certain portions of works in contemplating fair use. It is important to remember, however, that fair use is case-specific, and section 107 makes no mention of allowable percentages. Each scenario where a person may want to rely on fair use will be unique and requires thoughtful consideration.

In libraries we may have additional considerations relating to issues such as privacy, cultural sensitivity, institutional policies, donor concerns, or the considerations of lawyers who represent the library or archive. These are major considerations, which make it even more important to make the best case for fair use.

Application of Fair Use

The following commentary, together with the Campbell case at the beginning of this chapter, is meant to provide students with a broad introduction to the four fair use factors. For detailed discussion of the fair use factors in situations specific to libraries and archives, see the Fair Use commentary sections in these chapters:

Copyright and Libraries: Georgia State Copyright Lawsuit, mlpp.pressbooks.pub/librarylaw/chapter/copyright-library-reserves/#commentary

Copyright and Digitization, mlpp.pressbooks.pub/librarylaw/chapter/copyright-and-digitization/#fair

Copyright and Education, mlpp.pressbooks.pub/librarylaw/chapter/copyright-education/#fair

In addition to chapters in this textbook, many instruments and resources based on case law and section 107 have been created to help librarians and others determine whether their reuse is fair or not. Kenneth Crews and Dwayne Buttler created one of the most widely-used fair use resources: Fair Use Checklist (see the Works Consulted section at the end of this chapter for a list of resources).

In this chapter, we selected United States Supreme Court and Circuit Court cases to demonstrate what is or is not fair use as determined by the courts. Several of the Circuit Court cases cited below are from the 2nd or the 9th circuits, which include New York and California, respectively. Campbell began in the 6th circuit, which includes Michigan and Tennessee. Due to their locations, these circuits hear many copyright and intellectual property cases. While circuits may contemplate and refer to decisions made in other circuits, typically the jurisdictions covered by a Circuit Court are the only ones affected by those decisions. Supreme Court decisions impact the entire country.

The courts have stated that all four factors are important in an analysis. The cases cited below highlight court determinations on all four factors, but they also illustrate how the facts of each specific case can add more weight to one or more factors when determining fair use. It is important to look at the specific facts of the cases to consider how fair use determinations are made by the courts.

Factor 1. The purpose and character of the use

The purpose and character of the use refers to the reason material might be incorporated into another work. There are a multitude of reasons to include other works in creative material. These reasons include those stated in the law: criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, and research. A new element of consideration was introduced in Campbell v. Acuff-Rose. In this case, the Supreme Court established “transformativeness” as an element of consideration under the first factor. The Court decided that the ability to transform the original work added to the purpose. Under transformative uses, purpose could include parody, technological, and other unexpected or new things (Sims). In Cariou v. Prince, photographer Patrick Cariou (plaintiff) published Yes Rasta, a book of photographs taken in Jamaica. Appropriation artist Richard Prince (defendant) altered several of plaintiff’s photographs in a series called Canal Zone. Cariou filed a copyright infringement claim, and the district court ruled in his favor, stating a Prince’s work must “comment on, relate to the historical context of, or critically refer back to the original works.” Prince appealed the ruling, and the Court of Appeals for the Second Circuit found that fair use does not have a requirement that a work comment on the original or its author to be transformative. It also concluded that twenty-five of the thirty works in dispute constituted fair use. The court found the defendant’s “composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of [defendant’s] work.” Additionally, the court found no evidence that defendant’s work usurped the market for plaintiff’s photographs. Regarding the remaining five works, the court of appeals sent them back to the district court for further consideration under the proper standard (Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)). Transformativeness, while a new consideration under the first factor, is not dispositive.

In Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., Swatch Group Management Services, Ltd., a foreign public company (plaintiff), hosted a conference call discuss its recently released earnings report with financial analysts. After the call, Bloomberg, LP (defendant), a data and financial news reporting service, disseminated an unauthorized recording of the conference call to paid subscribers. Swatch Group filed a copyright infringement claim regarding the sound recording. The district court ruled that it was fair use for the defendant to obtain and distribute the sound recording. On appeal, the Court of Appeals for the Second Circuit held that defendant’s actions qualified as fair use because defendant’s use served the important public purpose of disseminating important financial information. The court further found that defendant’s use did not need to be transformative to be found “fair” (Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 742 F.3d 17 (2d Cir. 2014)). This case illustrates that courts do not only focus on transformation, nor do they ignore the other factors. Other factors, taken together, can make or break a fair use case.

Factor 2. The nature of the copyrighted work

For the nature of the work factor, one consideration is whether the work is published or unpublished. It can be easier to make a good case for fair use with published works. In collections owned and managed by libraries and archives, there are materials that are clearly unpublished, such as correspondence, internal documents, and drafts of literary or graphic works. There is also content where it may be difficult to determine whether something was considered published for the purposes of copyright (publication is important in determining copyright status and term, see the Duration of Copyright section in the Copyright Basics chapter at mlpp.pressbooks.pub/librarylaw/chapter/chapter-copyright-basics/#duration).

In Harper & Row Publishers, Inc. v. Nation Enterprises. Harper & Row (plaintiff) purchased the right to publish former President Gerald Ford’s memoirs. Harper & Row then sold the exclusive right to serialize excerpts of the unpublished memoirs to Time magazine. Nation Enterprises (defendant), publisher of The Nation magazine, obtained an unauthorized copy of the unpublished memoirs and published a 2,250-word article, at least 300-400 words of which constituted verbatim quotes taken from the manuscript before Time magazine was able to publish under their exclusive deal with plaintiff. The agreement between Time and Harper & Row was canceled. Harper & Row sued The Nation for infringement. The Supreme Court found the unauthorized reproduction of excerpts from the unpublished memoirs was not fair use. The Court stated that the unpublished nature of a work was a key, though perhaps not determinative, factor tending to negate a fair use defense. Additionally, the Court held that the excerpts represented “the heart of the book” and were qualitatively substantial in view of their expressive value in the infringing work. Lastly, the Court noted that the effect of the use upon the potential market for the copyrighted work was the “single most important element of fair use,” the defendant’s use “directly competed for a share of the market” and presented “clear-cut evidence of actual damage” (Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)). These works (unpublished or undetermined) could still be used because the purpose of the use, and the other factors, could weigh in favor of fair use.

Another consideration under this factor is whether a work is fiction or non-fiction, creative or fact-based. Cases where the work is non-fiction/fact-based generally favor fair use. In Dr. Seuss Enterprises, L.P. v. ComicMix LLC, Plaintiff owned the copyrights of works authored and illustrated by the late Theodor S. Geisel (a/k/a Dr. Seuss), specifically Oh, the Places You’ll Go! and two other works (collectively, “Go!”). Defendant liberally copied the textural style and visuals from Go! and the sci-fi franchise Star Trek to create the mash-up book Oh, the Places You’ll Boldly Go! (“Boldly”). Plaintiff sued alleging copyright infringement of Go! Defendants contended that Boldly was a fair use of Go! The Court of Appeals for the Ninth Circuit reversed the district court’s conclusion that Boldly was a fair use of Go! The panel found the first factor weighed against fair use because Boldly’s commercial use was not a parody or otherwise transformative. Boldly mimicked Go! and mirrored its purpose. On the second factor, the creative nature of Go! weighed against fair use. The third factor weighed against fair use because Boldly closely replicated arrangements of visual components and well-known elements of Go! The court determined that Defendants used the “heart” of the works and disagreed that the amount be evaluated relative to the entire body of work of Dr. Seuss. The final factor also weighed against fair use; the court observed that Boldly would likely target Go!’s existing and potential market for derivative works (Dr. Seuss Enters., L.P. v. ComicMix LLC 983 F.3d 443 (9th Cir. 2020)). When creativity and fiction are in play, courts generally closely consider the second factor, but review all the factors before deciding if a use is fair or not. In this case, all four factors were determined to be against fair use.

Factor 3. The amount and substantiality of the portion used

Generally, using a smaller portion of another work will be beneficial in making a fair use case. When courts are thinking about substantiality, they are asking about the “heart” of the work. Does the use of the content depend on the main reason someone would be interested in the material? This could be considered the critical plot point for a movie or series or maybe a melodic phrase from a song (the hook) (Sims). However, there are many circumstances in which using most or all the work (using graphic images, photographs, etc.) or the heart of the work could still be a fair use, when the other factors are considered.

In Campbell, the Court of Appeals for the Sixth Circuit ruled that parody was not fair use and that the commercial nature of 2 Live Crew’s song rendered it presumptively unfair. It also held that the defendants took too much from the original work by using the “heart” of the original as the “heart” of the parody. On appeal at the Supreme Court, the high court reversed the Sixth Circuit, finding that it had erred in the weight given to the commercial nature of defendants’ transformative parody use and in the presumption that the commercial nature of the parody rendered it unfair. The Court held that the commercial purpose of a work is only one element of its purpose and character. Like other uses, parody “has to work its way through the relevant factors, and be judged case by case, in light of the ends of the copyright law.” The Court found that for parody, it is essential to be able to quote from existing material and use some of the elements of a prior work to create a new one that comments on the original. Regarding market harm, the court found that it was unlikely that the artists shared the same audience, and that any person would mistake one song for the other (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)). Campbell is the first case where the Court discusses transformativeness as an important element under the first factor. Even with this seminal case (hip-hop music has relied on fair use in practice since the beginning of the genre, yet in litigation, artists rarely invoke fair use as an affirmative defense, Falzone), the court stresses the importance of moving through each of the factors before deciding on fair use.

Factor 4. The effect of the use upon the potential market for or value of the copyrighted work.

This factor receives intense scrutiny by courts. They are loath to hurt the market for the original rights holder. Under this factor, courts consider whether the use could have an impact on potential and existing markets for the rights holder. This can be very challenging to determine. The courts consider if the use compromises opportunities or causes confusion for the original rights holder. Courts also look at whether the same audience exists for the original and the new work.

In Bill Graham Archives v. Dorling Kindersley Ltd, Bill Graham Archives (plaintiff) owned copyrights in images originally used on the rock band the Grateful Dead’s concert posters and tickets. Dorling Kindersley Publishing (DK) (defendant) sought permission to reproduce images of seven posters and tickets in a cultural history book titled Grateful Dead: The Illustrated Trip. Though DK did not receive permission, defendant reproduced and displayed the posters and tickets in the book. Plaintiff sued for infringement after DK refused to pay license fees. Plaintiff appealed the district court’s finding of fair use. The Court of Appeals for the Second Circuit upheld the district court’s ruling on fair use. It found defendant’s use of the concert posters and tickets “as historical artifacts of Grateful Dead performances are transformatively different from the original expressive purpose of [the] copyrighted images.” The court also determined that though the images were copied in their entirety, this did not weigh against fair use because “the reduced size of the images” was consistent with plaintiff’s transformative purpose. Finally, the court held that defendant’s use did not harm the market for plaintiff’s copyrighted artwork (Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006)). Market harm, though scrutinized closely, must be considered in light of the other factors. Even if, though not in this case, a use was found to have market harm, it could still be considered fair use because the other factors favored fair use.

Conclusion

In the U.S., libraries, archives, and schools have special exemptions that govern the use and access they can provide to copyrighted content. Fair use is among those exemptions that libraries rely on frequently. Unlike the other exceptions, fair use is available to everyone. Fair use is not an infringement of copyright, even if the use utilizes any of the exclusive rights of the copyright holder. It requires a four-part analysis: purpose of the use, nature of the work, amount used, and potential market harm. Section 107 mentions potential uses including: criticism, teaching, and research purposes, but it does not outline any required amounts or portions.

Copyright and fair use have a long and storied history in the U.S. Fair use is both a right and a defense for users of copyrighted materials. As evidenced by the cases referenced in this chapter, all four factors are critical in determining fair use. Fair use is a necessarily broad right requiring thorough consideration in each individual use of copyrighted content. Since the revolutionary decision in Campbell, courts have increasingly considered transformativeness in their analysis, and courts closely look at the amount necessary to fulfill the stated purpose. Finally, the court also weighs the nature of the work and explores the actual and potential market effects for the rights holders.

We rely on the statute and case law to tell us what the law and courts find to be fair use, in the hope that the uses we make in the library will not initiate litigation. With thoughtful planning and following fair use, we can continue to make content available in creative and necessary ways for our constituents.

Scenarios

Scenario 1:

Professor Y, Associate Professor of Mermaid Studies, would like to digitize a copy of Mermaid on Land (published in 2010), a biography of Mamie Wattars, a mermaid currently living in California. Professor Y studies adaptive technologies for mermaids and has met and worked with Ms. Wattars on several occasions. Dr. Y would like to make the book available on a research website so students and colleagues can comment on the book. Is this a fair use? If it is not a fair use, how could Professor Y make a better case?

Scenario 2 (continuing scenario 1):

Professor Y posted the entire book online with permission from Ms. Wattars and her publisher, SwimPub. Dr. Y received numerous comments and feedback on the book, and now wants to take the submitted comments on Mermaid on Land and turn it into another book, Commentary from the Academy on Mermaid on Land. A faculty colleague says including the comments on this new book would be fair use. Is it?

Scenario 3:

Professor G, Emeritus Professor of Communication at Teachem College, teaches a class that has a final project which requires that students pull together images to market a hypothetical product. Professor G provides an online database of images that she has found over the years from stock image websites that provide licenses for educational use. Student used an image from the database in her final project. The project was uploaded to a public website for the sole purpose of presenting it to the instructor for a grade. The product is not real, and Student did not use the image for a commercial purpose. Photographer sees his photo, which he argues should not have been on the stock image website, in Student’s project. He decides to sue Student and Teachem for copyright infringement. Leaving aside whether the image was appropriately included in the stock image database, was Student’s use of the image a fair use?

Scenario 4:

The Hip-Hoppers, a three-person rap group, wants to sample Island Lady, a top ten hit from the 60s, in their new rap song Lady of the Isle. The Hip-Hoppers plan to make fun of the original song in their new version. They sought permission from the rights holders, but never heard back. They recorded Lady of the Isle with a sample from Island Lady. Island Lady’s rights holders sue alleging copyright infringement. The Hip-Hoppers say their use is fair use. Is it?

Scenario 5:

Actor worked with a production company to put together a compilation of clips (ranging from 10-120 seconds) from his recent film roles. The producer from one of the movies brought a copyright infringement claim for the use of a 120-second clip from a film that had not yet been commercially released (it was on the festival circuit). Fair use?

Works Consulted and Recommended Resources

Anderson, Jane. Indigenous/Traditional Knowledge & Intellectual Property. Center for the Study of the Public Domain, 2010, web.law.duke.edu/cspd/pdf/ip_indigenous-traditionalknowledge.pdf.

Bracha, Oren. “Commentary on Folsom v. Marsh (1841).” Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, 2008, www.copyrighthistory.org /cam/tools/request/showRecord?id=commentary_us_1841.

Brewer, Graham Lee. “Is a New Copyright Law a ‘Colonization of Knowledge’?” High Country News, Mar. 2019, www.hcn.org/issues/51.5/tribal-affairs-is-a-new-copyright-law-a-colonization-of-knowlege.

Buttler, Dwayne K. and Kenneth D. Crews. “Fair Use Checklist.” Copyright Advisory Services, Columbia University Libraries, copyright.columbia.edu/basics/fair-use/fair-use-checklist.html.

“Code of Best Practices in Fair Use.” Center for Media and Social Impact, cmsimpact.org/code/open-educational-resources/

Davis, Kevin R. Copyright Act of 1790, www.mtsu.edu/first-amendment/article/1030/copyright-act-of-1790.

Enimil, Sandra Aya, and Maria Scheid. ACRL Presents: Understanding Fair Use Through Case Law. 2020. YouTube, www.youtube.com/watch?v=0UC9Vm2zLtc&t=653s.

Enimil, Sandra Aya. “A Sample of Fair Use.” Copyright at Harvard Library Blog, Feb. 24, 2021, blogs.harvard.edu/copyrightosc/2021/02/24/fair-use-week-2021-day-three-with-guest-expert-sandra-aya-enimil/.

“Fair Use.” The Ohio State University Libraries. library.osu.edu/copyright/fair-use.

Fair Use Evaluator. librarycopyright.net/resources/fairuse/index.php.

Falzone, Anthony. “Why Hasn’t Diddy Tried to Save Music Sampling?” Slate Magazine, Nov. 1, 2007, slate.com/news-and-politics/2007/11/why-hasn-t-diddy-tried-to-save-music-sampling.html.

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Author

Sandra Aya Enimil (she/her) is the Copyright Librarian and Contracting Specialist at Yale University Library. At Yale, Sandra is the Chair of the License Review Team and provides consultation on licenses of all types for the Library. Sandra also provides information and resources on using copyrighted materials and assists creators in protecting their own copyright. Sandra collaborates with individuals and departments within the Library and across campus. She has given numerous presentations on various aspects of copyright. Prior to this role, she was the Copyright Services Librarian at Ohio State University Libraries. Sandra is committed to diversity, equity, and inclusion (DEI) and is interested in the intersection of DEI and intellectual property.  Sandra earned her Law and MSLIS degrees from the University of Illinois at Urbana-Champaign. Sandra has BAs in Political Science and Psychology from the University of Michigan and an MA in International Relations from the University of Ghana.

 

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Legal Issues in Libraries and Archives by Sandra Enimil is licensed under a Creative Commons Attribution 4.0 International License, except where otherwise noted.

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