4.2. Section 107
Fair Use Factors
- Purpose and character of the use
- Nature of the copyrighted work
- Amount and substantiality
- Effect on potential market or value
The first factor examines two different things—the purpose of the use, and the character of the use. With regard to purpose, a court will consider whether the use is of a commercial nature or, instead, for non-profit educational purposes. Although non-profit educational uses are favored over commercial uses, this means neither that all non-profit educational uses are fair, nor that all commercial uses are infringing. For example, a court has held that extensive copying of PBS programs by a public school system for distribution to schools within the system—an obvious educational use—was infringing.[2] Another court ruled that it was not a fair use when a teacher copied eleven pages from a thirty-five-page copyrighted booklet on cake decorating, and incorporated those eleven pages into a twenty-four-page booklet she prepared for her class.[3]
The second part of the first factor requires an examination of the character of the use, including whether the use is transformative. The character/transformative issue was discussed at great length in Campbell v. Acuff-Rose Music, where the U.S. Supreme Court found that the band 2 Live Crew’s parody of Roy Orbison’s “Oh Pretty Woman” was a fair use.[4] The Court wrote that the central purpose of the first factor is whether
