3.2 Fair Use Doctrine and Its Application in Art

Copyright law's fair use doctrine allows limited use of copyrighted material without permission. It's a crucial defense against infringement claims, balancing creators' rights with public interest in information sharing. Fair use analysis considers four key factors: purpose, nature, amount used, and market effect.

Fair use applies to various contexts, including transformative uses that add new meaning, commentary and criticism, parody, and educational purposes. These applications often involve repurposing or analyzing copyrighted works, with courts weighing the four factors to determine if the use is fair.

Defining Fair Use and Its Factors

Understanding Fair Use and Its Legal Basis

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• Fair use allows limited use of copyrighted material without permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research
• Doctrine originates from the Copyright Act of 1976, codified in 17 U.S.C. § 107
• Serves as a defense against copyright infringement claims
• Balances the rights of copyright holders with the public interest in the free flow of information

Four Factors of Fair Use Analysis

• Purpose and character of the use includes whether the use is commercial or for nonprofit educational purposes
• Nature of the copyrighted work examines the level of creativity and whether the work is published or unpublished
• Amount and substantiality of the portion used assesses both quantitative and qualitative aspects of the borrowed material
• Effect of the use upon the potential market evaluates the impact on the original work's value and potential market

Evaluating Specific Fair Use Factors

• Nature of the copyrighted work considers whether the original is factual (more likely fair use) or creative (less likely fair use)
• Published works receive less protection than unpublished works under this factor
• Amount and substantiality factor examines both quantity and quality of the portion used
• Courts consider whether the "heart" of the work was taken, even if a small portion
• Market effect analyzes both current and potential future markets for the copyrighted work
• Includes consideration of licensing opportunities and derivative works

Types of Fair Use

Transformative Use in Fair Use Doctrine

• Transformative use adds new expression, meaning, or message to the original work
• Alters the purpose or character of the original work significantly
• More likely to be considered fair use than mere reproduction
• Includes uses such as appropriation art (Jeff Koons' String of Puppies)
• Can involve repurposing the original work for a different context or audience

Commentary, Criticism, and Parody

• Commentary and criticism involve using portions of a work to analyze or discuss it
• Can include book reviews, academic papers, or art critiques
• Parody imitates a work for comic effect or ridicule
• Often targets the original work itself, not just using it as a vehicle for humor
• Parody receives special consideration in fair use analysis due to its transformative nature (2 Live Crew's parody of "Oh, Pretty Woman")

Educational and Research Applications

• Educational use includes classroom instruction, academic research, and scholarship
• Generally favored in fair use analysis, especially if nonprofit
• Covers activities such as making copies for students or incorporating copyrighted material in lectures
• Research applications can involve data mining or text analysis of copyrighted works
• Libraries and archives have special fair use provisions for preservation and access