How does a court determine if use of a copyright constitutes Fair Use?

The most disputed affirmative defense to copyright infringement is likely the fair use of the copyrighted work. To constitute fair use, the use of the work generally must not be extensive and not cause a negative impact on the copyright holder. The doctrine does not protect activity that is used to diminish the value of the copyright to the rightful holder. In determining whether use of a copyright constitutes fair use, a court will employ several factors in examining the nature and extent of the use. These factors include:

Purpose of the Use – If the purpose of the use was for a non-profit purpose, it is more likely to be protected as a fair use than a commercial activity.

Nature of the Work – What type of copyright is claimed. If the work was created for a commercial purpose, it may demand higher protection. Likewise, a work made for entertainment or a fictional work, may afford greater protection than a fact-based work.

Extent of the Use – If the use was incidental or a very small portion of the work was used, it is more likely to be a fair use. Also, if the work was used as collaboration or as part of a larger project, it may be transformative in nature. A work that sufficiently transforms the original work may be fair use.

Economic or Market Impact – If the use of the copyrighted work causes a negative market or economic impact on the use or value of the original work, it is less likely to be fair use.