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“Fair Use”: An Affirmative Defense to “Copyright Infringement”

Posted in Copyright Law

by David Muradyan

A copyright is a form of protection afforded to owners of “original works of authorship” for the owner’s literary, musical, artistic and other works. Owners of copyrights have a number of exclusive rights, including the right to reproduce the copyrighted work in copies, to prepare derivative works based upon the work, and to distribute copies of the work to the public by sale or other transfer of ownership. One who uses another’s copyrighted material without permission from the copyright owner may be liable for copyright infringement, unless that person can demonstrate that the use was “fair use,” which is an affirmative defense to copyright infringement.  

Copyright and Copyright Infringement

The Constitution authorizes the Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." U.S. Const., Art. I, § 8, cl. 8. In exercising this power, Congress must balance “the interest of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). Congress crafted a comprehensive statutory scheme governing copyrights with the enactment of the Copyright Act of 1976 (the “Copyright Act”).

The Copyright Act provides “copyright protection” for “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a) (emphasis added). Such protection is not extended to ideas or facts upon which the expression is based. 17 U.S.C. § 102(b). Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. 17 U.S.C. § 102(a). The Copyright Act confers several exclusive rights upon copyright owners, including without limitation the exclusive rights to (1) reproduce the copyrighted work; (2) prepare derivative works based upon the copyrighted work; and (3) distribute copies of the copyrighted work to the public by sale or other transfer of ownership. 17 U.S.C. § 106(1)-(3). However, as set forth below, a copyright owner’s rights are subject to certain statutory exceptions, including Section 107 of the Copyright Act, which permits individuals to make “fair use” of a copyrighted work.

Anyone who violates any of the exclusive rights of the copyright owner is an infringer of the copyright or rights of the author, as the case may be. 17 U.S.C. § 501(a). When there has been such an infringement, the copyright owner is entitled to bring an action for copyright infringement. 17 U.S.C. §501(b). In order to institute a copyright infringement action, the copyright owner must have registered the copyright with the U.S. Copyright Office. 17 U.S.C. § 411(a). A copyright holder can recover statutory damages and attorney’s fees only after registration. 17 U.S.C. § 412. The U.S. Supreme Court has stated that “[t]he Copyright Act provides the owner of a copyright with a potent arsenal of remedies against an infringer of his work, including an injunction to restrain the infringer from violating his rights, the impoundment and destruction of all reproductions of his work made in violation of his rights, a recovery of his actual damages and any additional profits realized by the infringer or a recovery of statutory damages, and attorney’s fees.” Sony Corp. of America, 464 U.S. at 433-434, (citing 17 U.S.C. §§ 502-505).  In addition to registration, it is advisable but not required (for works published after March 1, 1989) that a copyright holder affix a copyright notice to copies in such a way as to give reasonable notice of the claim of copyright.  A copyright notice should contain (1) the symbol © (the letter C in a circle), or the word “Copyright, or the abbreviation “Copr.”; (2) the year of first publication of the work; and (3) the name of the owner of copyright in the work. For example: “© 2011 John Doe.”

To establish a prima facie case of copyright infringement, a plaintiff must show (1) ownership of a valid copyright, and (2) violation by the alleged infringer of at least one of the exclusive rights granted to copyright owners by the Copyright Act. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (citing 17 U.S.C. § 501(a)). If a plaintiff makes a prima face case of copyright infringement, the defendant may avoid liability if it can establish that its use of the copyrighted material is a “fair use,” which is an affirmative defense to copyright infringement. 17 U.S.C. § 107; Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1163 (9th Cir. 2007).

“Fair Use”: An Affirmative Defense to Copyright Infringement

Section 107 of the Copyright Act states that the “fair use” of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 17 U.S.C. § 107 (emphasis added). Thus, “fair use” is an affirmative defense to copyright infringement. Perfect 10, Inc., 508 F.3d at 1163. In determining whether the use was a “fair use,” the following factors shall be considered: (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. 17 U.S.C. § 107. However, the “fair use” doctrine is an “equitable rule of reason” and “no generally applicable definition is possible, and each case raising the question must be decided on its own facts.” H.R. Rep. No. 94-1476, p. 65 (1976).

The first factor in determining whether one’s use of another’s copyrighted material constitutes “fair use” is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107. As the U.S. Supreme Court has stated, “[t]he central purpose of this investigation is to see . . . whether the new work merely ‘supersedes the objects’ of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (citations and quotation marks omitted). Indeed, Section 107 provides several examples of the “purpose” of the use, including whether the purpose of the use was for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. 17 U.S.C. § 107. “The fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use.” Harper & Row, Publishers, Inc. v. National Enterprises, 471 U.S. 539, 562 (1985). However, “the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness.” Campbell, 510 U.S. at 584. The “propriety of the defendant’s conduct” is also relevant to “character” of the use (Harper & Row, Publishers, Inc., 471 U.S. at 562 (quoting 3 M. Nimmer, Copyright § 13.05[A], at 13-72 (2000)), because “fair use” presupposes “good faith” and “fair dealing.” Harper & Row, Publishers, Inc., 471 U.S. at 562-563 (citations and quotations omitted).

The second factor to consider is “the nature of the copyrighted work.” 17 U.S.C. § 107. The second factor “calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” Campbell, 510 U.S. at 586. For example, copyright law generally provides greater protection to factual works than works of fiction or fantasy because there is a greater need to disseminate the former. Harper & Row, Publishers, Inc., 471 U.S. at 563.

The third “fair use” factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107. This factor “calls for thought not only about the quantity of the materials used, but about their quality and importance, too.” Campbell, 510 U.S. at 587. “Here, attention turns to the persuasiveness of a [user’s] justification for the particular copying done, and the enquiry will harken back to the first of the statutory factors, for . . . the extent of permissible copying varies with the purpose and character of the use.” Id. at 586-87. The facts relevant in analyzing this factor will also tend to address the fourth factor, by revealing the degree to which the use may serve as a market substitute for the original or potentially licensed derivatives. Id. at 587.

The fourth and final factor is “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107. This factor “is undoubtedly the single most important element of fair use.” Harper & Row, Publishers, Inc., 471 U.S. at 566 (citing 3 Nimmer § 13.05[A], at 13-76, and cases cited therein.) To negate fair use, the copyright owner need only show that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work. Harper & Row, Publishers, Inc., 471 U.S at 568 (citations and quotation marks omitted). This factor must take account not only of harm to the original but also of harm to the market for derivative works. Id.

As demonstrated above, in order to determine whether one’s use of another’s copyrighted material is “fair use,” a thorough analysis of the four factors above must be conducted. This determination is important because “fair use” is an affirmative defense to copyright infringement.