Fair Use Under U.S. Copyright Law: Gaps and Ambiguities

Introduction

Under U.S. Code Title 17, Section 107, copyrighted works may be used freely and lawfully under certain circumstances and within certain guidelines (17 U.S.C. 107). These guidelines — commonly known as the fair use factors — are vague at best and can be misleading. Further, they appear in some cases to encourage the use of copyrighted material, creating an even more confusing situation for both copyright holders and intended users. This paper outlines the fair use section of U.S. Code Title 17 and discusses the implications of the fair use factors on copyrighted material. It also examines examples of what is considered legal use of copyrighted material under the fair use factors, and what is considered a violation. The purpose is to show that while the guidelines for fair and free use are certainly helpful, they are not restrictive enough to provide effective guidance for the fair use of copyrighted materials.

Before analyzing examples of how the fair use guidelines produce confusion, it is necessary to examine Section 107 of Title 17 carefully. According to the fair use statement as laid out in Section 107, there are certain circumstances under which copyrighted material can be used without express permission from the copyright holder. These circumstances include uses for the purposes of "criticism, comment, news reporting, teaching, scholarship, or research" (17 U.S.C. 107, para. 1). In other words, if the use of the material is non-profit, educational, or critical in purpose, the use is then analyzed in terms of the "fair use" factors. This is not to say that all uses of copyrighted material in, for example, news reporting will be found acceptable under the fair use standard. The "purpose" statement is simply meant to indicate the atmosphere in which fair use is possible.

Overview of Section 107 and the Fair Use Framework

If the intended purpose of use falls under the above criteria, Section 107 specifies four fair use factors to consider. The first is the "purpose and character" of the intended use (17 U.S.C. 107, n.1). This criterion specifies whether the use will be commercial or non-profit in nature. The implication is that uses of a non-commercial purpose are more often considered favorably under the fair use standards (Cheskis, 16).

This criterion may seem straightforward, but consider a commercial criticism of a specific copyrighted work — for example, a novel critically analyzing the conclusions of Dan Brown's The Da Vinci Code. Under the first paragraph of Section 107, uses for the purpose of criticism are protected, but under the first fair use criterion, commercial use is generally considered unprotected. This dichotomy is difficult to resolve and creates a vague standard for commercial uses that relate to otherwise protected purposes. In the above example, many would presume that since uses for the purpose of criticism are explicitly protected, a novel criticizing another work would be acceptable under the fair use decree.

The Four Fair Use Factors

The second criterion is the "nature of the copyrighted work" (17 U.S.C. 107, n.2). This is perhaps the vaguest of the four fair use criteria. The guideline itself contains no statement of purpose, so without examining prior court cases, it is nearly impossible to determine the criterion's intent. For example, does it promote use of unpublished, creative copyrighted material such as original illustrations, or does it encourage fair use when dealing with non-creative factual information such as accounts of military history?

According to court rulings, the "nature" component refers to the level of creativity of the original work. In Harper & Row, Publishers, Inc. v. Nation Enterprises, the Court ruled that fact-based works such as historical accounts allow for broader use without permission under the fair use stipulations (471 U.S. 539, 563). The idea, then, is that the fair use guidelines favor the free and fair use of published, factual works, while showing less favor toward the use of unpublished, dramatic works of expression (Madison, 1527).

This, too, can be misleading. When using unpublished, dramatic works — such as a play — for non-profit educational purposes, fair use standards are generally applied. Therefore, if a school were to use a local author's play to teach dramatic dialogue, a court would likely find that the use falls under the fair use standards. If, on the other hand, the same play were used in a for-profit private school, there would be a lesser tendency to apply fair use standards, since the institution is commercial in nature.

The third criterion concerns the "amount and substantiality of the portion used in relation to the copyrighted work as a whole" (17 U.S.C. 107, n.1). This criterion is also extremely vague. Notably, the statute does not specify how much material can be used without infringing on copyright ownership; it merely implies that some limit exists. Additionally, the implication is that extreme distortion of a copyrighted work may permit use under the fair use guidelines (Webber, 68).

Consider the use of copyrighted artwork in a public school. If the artwork were used wholly intact as part of a student's own art design, the use would likely be considered illegal. However, if a student were to distort the image to an extreme degree, or use only a portion of it within his or her own image, the use would likely be considered legal. In both cases, another person's artwork is incorporated into the creation of a new piece, yet in one case the use is legal, and in the other it is not. This distinction hardly constitutes a clear standard of fair use.

The final criterion addresses "the effect of the use upon the potential market for or value of the copyrighted work." In other words, if the use of the copyrighted work would negatively influence the potential market of the original copyright holder, the use is generally considered illegal without permission. On the other hand, if the intended use would enhance or leave unaffected the market for the original work, the use may be considered under the fair use provisions (Cheskis, 16).

While this is the least vague of the four criteria, it remains problematic. Consider the use of a company's logo in a piece of artwork. If an artist incorporated the logo into a work that portrayed the company positively, the art might boost sales and thus fall under the fair use standards. If the same artist used the same logo in a critical piece that could negatively impact sales, the use would likely be considered illegal under the fair use standards. In both scenarios, the same logo appears in the same artist's work, yet one use is legal while the other is not (Webber, 71).

Conclusion and Call for Reform

It is clear, based on the above examples and court cases, that the laws regarding fair use of copyrighted material are too vague to provide true guidance. Each case is decided by precedent and the subjective opinion of the judge or jury. There are no solid guidelines in place to regulate the use of copyrighted material, and as a result, many works are used each day in violation of copyright laws. In order to truly protect copyrighted materials, Title 17, Section 107 must be revised with more specific limitations on concepts such as "commercial use," the "nature" of the original work, the "amount" of the work used, and the "market" of the original work. Until such concepts are clearly defined and regulated, both copyright holders and those attempting to use copyrighted materials will continue to face confusion regarding the proper boundaries of fair use.