Below is a selection of FAQs from ChillingEffects.org, which give some basic information about the fair use doctrine and could be useful for online video creators. Please visit the ChillingEffects site for the full list.
What is fair use?
Where is the fair use doctrine codified?
Answer: The fair use doctrine was originally a judge-made doctrine embodied in case law. See Folsom v. Marsh, 9 F.Cas. 342 (1841). Congress later codified it at Title 17 of the United States Code, Section 107.
This section provides:
Section 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A [setting forth copyright owners' exclusive rights and visual artists' artistic rights], 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
What types of uses does the fair use doctrine protect?
Answer: The language used by Congress in Title 17, Section 107 specifically lists ?criticism, comment, news reporting, teaching, scholarship, and research? as examples of uses that might be protected under fair use. However, this list is non-exhaustive, and therefore a use not covered in one of the categories could nonetheless be successfully defended as a fair use. Conversely, not every use that falls within the listed categories will necessarily be found by a court to be fair. For example, not every use of another's work for research or educational purposes will be held to be a fair use. See Encyclopaedia Britannica Educational Corp. v. Crooks, 542 F.Supp. 1156 (W.D.N.Y.1982).
In considering a fair use defense to a claim of infringement, a court will focus its inquiry on the specific facts of the individual case. Therefore, it is very difficult to predict with accuracy what a court will do until it engages in the inquiry. A court will almost always use the four factors listed by Congress as a guide in its inquiry. The four factors listed are:
FACTOR 1: THE PURPOSE AND CHARACTER OF THE USE
This factor considers whether the use helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public. The defendant must show how a use either advances knowledge or the progress of the arts through the addition of something new. The more transformative the use, the more likely it is to be fair, whereas if defendant merely reproduces plaintiff's work without putting it to a transformative use, the less likely this use will be held to be fair. Further, the more commercial defendant's use, the less likely such use will be fair.
FACTOR 2: THE NATURE OF THE COPYRIGHTED WORK
The more creative, and less purely factual, the copyrighted work, the stronger its protection. In order to prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright?only their particular expression or fixation merits such protection. Second, if a copyrighted work is unpublished, it will be harder to establish that defendant's use of it was fair. See Salinger v. Random House, Inc., 650 F. Supp. 413 (S.D.N.Y. 1986), and in New Era Publications Int'l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988). One commentator noted that "the original author's interest in controlling the circumstances of the first public revelation of his work, and his right, if he so chooses, [is to not] publish at all." While some argue that legal protection of unpublished works should come from the law of privacy rather than the law of copyright, Congress amended the Fair Use doctrine to explicitly note, "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."
FACTOR 3: THE AMOUNT AND SUBSTANTIALITY OF THE PORTION DEFENDANT USED
In general, the less of the copyrighted work that is used, the more likely the use will be considered fair. If, however, the defendant copied nearly all of, or the heart of, the copyrighted work, his or her use is less likely to be considered fair. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).
FACTOR 4: THE EFFECT OF DEFENDANT'S USE ON THE POTENTIAL MARKET OF THE COPYRIGHTED WORK
This factor is generally held to be the most important factor. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985). This factor considers the effect that the defendant's use has on the copyright owner's ability to exploit his or her original work. The court will consider whether the use is a direct market substitute for the original work. The court may also consider whether harm to a potential market exists. The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. See Sony Corp. v. Universal City Studios, 464 U.S. 417, 451 (1984). It is important to note that courts recognize that some market harm may come from fair uses such as parodies or negative reviews, but that such market harm does not militate against a finding of fair use.
Do I need permission from the copyright holder to make fair use?
Is my parody of another's copyrighted work protected fair use?
Answer: It is likely that a bona fide parody, as opposed to satire, that does not usurp the market for plaintiff's work or unfairly free ride on plaintiff's work will be protected as a fair use. See Campbell v. Acuff-Rose Music, 510 US 569 (1994). Courts have held that the fair use defense can protect a parody of a copyrighted work from an infringement claim. However, that does not necessarily mean that all parodies will be protected. In the case of a parody where the defendant raises a fair use defense, the courts will run through the four part fair use analysis just as they would with any other fair use test. [See above for the four part test].
While it is problematic to try to predict what a court will decide in any fair use case, it is likely that in the case of a parody the court will focus on the fourth factor of the inquiry, which requires the court to ask what effect the parody has on the potential market for the copyrighted work. If the parody usurps the market for the copyrighted work, then there is an increased chance that the court will find that the use is not fair. If the parody dampens the market for the copyrighted work as a result of its implicit criticism of the work, such a negative effect on the market does not render such use unfair.