4 Factors to determine fair use of a copyrighted work
In his webinar, “Fair Use or Infringement in 2018, and Other Current Copyright Issues”, Ken Norwick, author of The Legal Guide for Writers, Artists, and Other Creative People reminded participants that the purpose of copyright is “to give creators an incentive to create”.
The U.S. Constitution states that the purpose of copyright is “to promote the progress of science and useful arts”, said Norwick. However, in order to progress, he said, there must be a level of fair use of the creations that came before. Four factors exist in determining whether a use is qualified as fair use and thus not an infringement on copyright, said Norwick. They are:
1) The purpose and character of the use, including whether such use is of a commercial nature or is of or is for non-profit, educational purposes. Specifically, this factor is used to determine whether “the new work supersedes the object of the original creation or instead adds something new with a further purpose.” In other words, is it “transformative”? According to Norwick, the more transformative the new work, the greater likelihood of finding to be fair use.
2) The nature of the copyrighted work. According to Norwick, “this is usually reduced to whether it is highly creative…or whether it is mostly factual.” He adds that “copyright is usually more protective of the creative.”
3) The amount and substantiality of the portion used in proportion to the copyrighted work as a whole. Norwick shares that there are no rules related to the number of words that constitutes fair use. He further notes that in some cases fair use could include up to the complete work.
4) The market impact, or the effect of the use on the potential market for or the impact of the copyrighted work. According to Norwick, the greater the impact on the market of the original work, the less likely its use will be considered fair use.
Of the four factors, Norwick said the most impactful in determining fair use is the transformative factor – factor 1 – but all four must be considered together. According to the Supreme Court, the four factors must be considered on a case-by-case basis, “nor may [they] be treated in isolation, one from another”. Instead, “the results must be weighed together in light of the purpose of copyright.”
When determining the fair use of copyrighted work in your own creation, focus on the intent of the copyright law and use the existing work in a way to “further the progress of science and useful arts” by transforming the existing work into something new.