B. Measuring Fair Use: The Four Factors

Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors in resolving fair use disputes, which are discussed in detail below. It's important to understand that these factors are only guidelines and the courts are free to adapt them to particular situations on a case-by-case basis. In other words, a judge has a great deal of freedom when making a fair use determination and the outcome in any given case can be hard to predict.

The four factors judges consider are:

1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.

1. The Transformative Factor: The Purpose and Character of Your Use

In a 1994 case, the Supreme Court emphasized this first factor as being a primary indicator of fair use. At issue is whether the material has been used to help create something new, or merely copied verbatim into another work. When taking portions of copyrighted work, ask yourself the following questions:

• Has the material you have taken from the original work been transformed by adding new expression or meaning?
• Was value added to the original by creating new information, new aesthetics, new insights and understandings?
  
  In a parody, for example, the parodist transforms the original by holding it up to ridicule. Purposes such as scholarship, research or education may also qualify as transformative uses because the work is the subject of review or commentary.

2. The Nature of the Copyrighted Work

Because the dissemination of facts or information benefits the public, you have more leeway to copy from factual works such as biographies than you do from fictional works such as plays or novels.

In addition, you will have a stronger case of fair use if the material copied is from a published work than an unpublished work. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of his expression.

3. The Amount and Substantiality of the Portion Taken

The less you take, the more likely that your copying will be excused as a fair use. However, even if you take a small portion of a work, your copying will not be a fair use if the portion taken is the "heart" of the work. In other words, you are more likely to run into problems if you take the most memorable aspect of a work. For example, it would not probably not be a fair use to copy the opening guitar riff and the words "I can't get no satisfaction" from the song, "Satisfaction."

This rule--less is more--is not necessarily true in parody cases. In a parody, the parodist is borrowing in order to comment upon the original work. A parodist is permitted to borrow quite a bit, even the heart of the original work, in order to conjure up the original work. That's because, as the Supreme Court has acknowledged, "the heart is also what most readily conjures up the [original] for parody, and it is the heart at which parody takes aim. " (Campbell v. Acuff-Rose Music , 510 U.S. 569 (1994).)

4. The Effect of the Use Upon the Potential Market

Another important fair use factor is whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work. As we indicated previously, depriving a copyright owner of income is very likely to trigger a lawsuit. This is true even if you are not competing directly with the original work.

For example, in one case an artist used a copyrighted photograph without permission as the basis for wood sculptures, copying all of the elements of the photo. The artist earned several hundred thousand dollars selling the sculptures. When the photographer sued, the artist claimed his sculptures were a fair use because the photographer would never have considered making sculptures. The court disagreed, stating that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed. ( Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).)

Parody is given a slightly different fair use analysis with regard to the impact on the market. It's possible that a parody may diminish or even destroy the market value of the original work. That is, the parody may be so good that the public can never take the original work seriously again. Although this may cause a loss of income, it's not the same type of loss as when an infringer merely appropriates the work. As one judge explains, "The economic effect of a parody with which we are concerned is not its potential to destroy or diminish the market for the original --any bad review can have that effect--but whether it fulfills the demand for the original." (Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).)

5. The "Fifth" Fair Use Factor: Are You Good or Bad?

When you review fair use cases, you may find that they sometimes seem to contradict one another or conflict with the rules expressed in this chapter. Fair use involves subjective judgments and are often affected by factors such as a judge or jury 's personal sense of right or wrong. Despite the fact that the Supreme Court has indicated that offensiveness is not a fair use factor, you should be aware that a morally offended judge or jury may rationalize its decision against fair use.

For example, in one case a manufacturer of novelty cards parodied the successful children's dolls, the Cabbage Patch Kids. The parody card series was entitled the Garbage Pail Kids and used gruesome and grotesque names and characters to poke fun at the wholesome Cabbage Patch image. Some copyright experts were surprised when a federal court considered the parody an infringement, not a fair use. (Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc., 642 F. Supp. 1031 (N.D. Ga. 1986).)

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