Cite as 804 F.3d 87 (2nd Cir. 2015)
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.commercial nature or is for nonprofit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.
17 U.S.C. § 107. As the Supreme Court has designated fair use an affirmative defense, see Campbell, 510 U.S. at 590, 114 S.Ct. 1164, the party asserting fair use bears the burden of proof, Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 918 (2d Cir.1994).
The statute’s wording, derived from a brief observation of Justice Joseph Story in Folsom v. Marsh,[1] does not furnish standards for recognition of fair use. Its instruction to consider the “purpose and character” of the secondary use and the “nature” of the copyrighted work does not explain what types of “purpose and character” or “nature” favor a finding of fair use and which do not. In fact, as the Supreme Court observed in Campbell, the House Report makes clear that, in passing the statute, Congress had no intention of normatively dictating fair use policy. The purpose of the enactment was to give recognition in the statute itself to such an important part of copyright law developed by the courts through the common law process. “Congress meant § 107 ‘to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it an any way,’ and intended that courts continue the common-law tradition of fair use adjudication.” Campbell, 510 U.S. at 577, 114 8.Ct. 1164 (quoting H.R.Rep. No. 94-1476, at 66 (1976), S.Rep. No. 94-473, at 62 (1975), U.S. Code Cong. & Admin, News 5659, 5679 (1976)). Furthermore, notwithstanding fair use’s long common-law history, not until the Campbell ruling in 1994 did courts undertake to explain the standards for finding fair use.
The Campbell Court undertook a comprehensive analysis of fair use’s requirements, discussing every segment of § 107. Beginning with the examples of purposes set forth in the statute’s preamble, the Court made clear that they are “illustrative and not limitative” and “provide only general guidance about the sorts of copying that courts and Congress most commonly ha[ve] found to be fair uses.” 510 U.S. at 577–578, 114 S.Ct. 1164 (internal quotations and citations omitted). The statute “calls for case-by-case analysis” and “is not to be simplified with bright-line rules.” Id. at 577, 114 S.Ct. 1164. Section 107’s four factors are not to “be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” Id. at 578, 114 S.Ct. 1164. Each factor thus stands as part of a multifaceted assessment of the crucial question: how to define the boundary limit of the original author’s exclusive rights in order to best serve the overall objectives of the copyright law to expand public learning while protecting the incentives of authors to create for the public good.
At the same time, the Supreme Court has made clear that some of the statute’s four listed factors are more significant
- ↑ 9 F. Cas. 342, 348 (C.C.D.Mass.1841) (“[W]e must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”).
