Following the Ebb and Flow of Fair Use Limitations on Copyright

Lora Bentley

One of the most widely claimed limitations on a copyright holder's rights is "fair use." 17 U.S.C. 107 declares that "the fair use of a copyrighted work ... for purposes of criticism, comment, news reporting, teaching ... scholarship or research is not an infringement ..." Four factors come into play when determining whether a use, even for one of the enumerated purposes, is indeed fair. As set out in the statute, they are:

  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.

This limitation allows teachers to make copies of works for use in a classroom, students to quote passages from works in research papers, speakers to use movie clips in presentations and bloggers to excerpt snippets from other bloggers.


Unfortunately, there are no hard and fast rules regarding how much of a copyrighted work can be used or what effects upon the value of the copyrighted work are permissible. In fact, those questions typically come up only after someone has been accused of infringement and then raises fair use as a defense. And even then, courts weigh the factors on a case-by-case basis - what's acceptable in one may be totally inappropriate in another.


As such, there's no way to be exactly sure a particular use is "fair," unless a case with circumstances identical to those in question has been decided by the same court in the past. The chances of that happening are rather small.



What constitutes fair use of online content is even more up in the air simply because the nature of online works and the manner in which they can be used continues to evolve. But there is a growing body of case law from which we can draw examples, at the very least. One can even be drawn from the recent Righthaven litigation. In Righthaven v. Jama, the court decided use of an entire newspaper article (33 paragraphs in length) was fair.


Here's the background: Defendants' nonprofit website provided information and commentary on immigration issues primarily for educational purposes. The article in question discussed the propensity of police in Las Vegas to target minorities.


In a blog post on the decision, Santa Clara University School of Law Associate Professor Eric Goldman noted that the court weighed the four factors and found, among other things:

the defendants' use was transformative because Righthaven is a litigation-driven business, the republication was to educate the defendants' audience. ... The use was also non-commercial ... [and using 100 percent of the article] was reasonable because it wasn't easily distilled or edited.

Goldman also explained that Righthaven couldn't demonstrate that defendants' use of the article had harmed its market because Righthaven is in the litigation business and is not acting "as a traditional newspaper." In other words, Righthaven's market is completely different than the market served by the newspapers it represents. (That's where the whole standing issue comes into play.)


Given the flux in the law of fair use, it may be easier to ask permission every time than to try and predict whether any given use would be considered fair under the circumstances.

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