3
Discussion
Background
Fair use is an affirmative defense,[1] and as such is relevant only after a copyright owner has made out a prima facie case of infringement. A prima facie case of infringement consists of ownership of the right asserted and unauthorized appropriation by the defendant of a material amount of expression. The copying of facts or of a de minimis amount of expression will not support a prima facie case of infringement. Fair use thus excuses the copying of a material amount of expression, with the test of materiality involving both quantitative and qualitative inquiries.
Fair use was developed by the courts and was codified for the first time in Section 107 of the 1976 Copyright Act. As United States District Judge Pierre Leval has written, the purpose of fair use is to “serve the copyright objective of stimulating productive thought and public instruction without excessively diminishing the incentives for creativity.”[2] This Committee’s 1976 report noted that “[a]lthough the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.”[3]
In order to provide some guidance, however, Section 107 contains criteria derived from earlier 6court decisions. The preamble to Section 107 lists six illustrative[4] types of uses that may be analyzed under the doctrine: criticism, comment, news reporting, teaching, scholarship, and research. These uses are not, however, presumptively fair.[5] Instead, the courts are directed to examine the use according to four statutory factors: “(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.” While all four factors must be considered in each fair use case, additional factors may also be considered in the court’s discretion.
All claims of fair use must be judged on the totality of the facts in the particular case by balancing all the factors. For this reason,
- ↑ Harper & Row, Pub., Inc. v. Nation Ent., 471 U.S. 539, 561 (1985). In College Entrance Examination Board v. Cuomo, 90-CV-437 (N.D.N.Y. filed March 23, 1992), slip opinion at p. 11 footnote 7, the district court erroneously held that where the copyright owner seeks a preliminary injunction, the copyright owner bears the burden of disproving the defense. When the copyright owner seeks summary judgment, the burden of proving the defense, according to the court, is with the defendant. The College Entrance Examination Board opinion is contrary to the statute and the Supreme Court’s Harper & Row opinion: the burden of proving fair use is always on the party asserting the defense, regardless of the type of relief sought by the copyright owner.
- ↑ Leval, “Toward a Fair Use Standard,” 103 Harv. L. Rev. 1103, 1110 (1990).
- ↑ H. Rept. No. 94–1476, 94th Cong., 2d Sess. 65 (1976).
- ↑ Section 107 uses the terms “including” and “such as.” Section 101 of the Copyright Act defines these terms as being “illustrative and not limitative.” Accordingly, types of uses beyond the six enumerated in the preamble to Section 107 may also be considered. Parody is a common example of such a use. See Fisher v. Dees, 794 F.2d 432, 437–438 (9th Cir. 1986).
- ↑ Harper & Row, Pub., Inc. v. Nation Ent., 471 U.S. 539, 561 (1985): “The drafters resisted pressures from special interest groups to create presumptive categories of fair use, but structured the provision as an affirmative defense requiring a case-by-case analysis.”
