What are the four factors of fair use?

Glenn W. Peterson

in public their unpublished or published works in a fixed medium. However, while you have the right to limit the use of your creative work under copyright law, there are certain situations in which someone can use portions of your work without your permission according to the principle of fair use.

According to FindLaw, courts make fair use decisions on a case-by-case basis because it is a gray area of the law. If you bring a lawsuit for copyright infringement, the court will render a decision on the basis of four factors to determine whether or not the use of the work was fair.

Is the copyrighted material factual or creative?

Due to the benefit to society from the exchange of ideas, factual works (such as a scientific study, historical account or biography) receive less copyright protection than creative works, such as poetry or fiction. However, while copyrights do not apply to facts themselves, the law does protect your form or expression or phrasing of factual information.

How much of the copyrighted material appears in the derivative work?

For purposes of parody, it is acceptable to use a large portion of the copyrighted work. Otherwise, the larger the portion of the copyrighted material used, the less viable the fair use defense will be.

Is the use transformative?

In other words, did the use of the copyrighted material lead to new ideas or create new information? Did the original work change by virtue of a new expression? Courts are more likely to consider a work fair use if it is transformative.

How does the use affect the value of or market for the copyrighted material?

If the use of the copyrighted material deprives the copyright owner of income, even if the new material is not in direct competition, the court is unlikely to deem it fair.

It is also important to note that fair use applies only to portions of a copyrighted work, not the work in its entirety.

The information in this article is not intended as legal advice but provided for educational purposes only.