In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include. The Copyright Act sets out four nonexclusive factors for courts to examine (17 U.S.C. The Supreme Court recognized that science and art generally rely on works that came before them and rarely spring forth in a vacuum, and instructs courts to use the doctrine to limit the rights of a copyright owner regarding works that build upon, reinterpret, and reconceive existing works. To determine whether a work constitutes fair use, courts engage in a case-by-case analysis and a flexible balancing of relevant factors. 7, 2009) (arguing that subsequent Supreme Court ruling in "Campbell" dispelled this presumption).
417, 451 but see Sony BMG Music Entertainment v. "A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work." Sony, 464 U.S. Nevertheless, the Supreme Court has suggested that, at least where noncommercial uses are concerned, the defendant may enjoy a presumption that the use does not harm the market for the original work. 1998) ("because fair use is an affirmative defense, Defendants bear the burden of proof on all of its factors"). 2007) (In a motion for preliminary injunction, once the moving party has shown a likelihood of success for a copyright infringement claim, the burden shifts to the nonmoving party to show a likelihood that the affirmative defense of fair use will succeed.) Columbia Pictures v. 1992).ĭespite the lack of such language in the statute, the Supreme Court and Congress have characterized fair use as an affirmative defense, and has placed the burden of proving fair use on the defendant. 2004) ("fair use is not infringement of a copyright") (citing Campbell, 510 U.S. 1991) ("It has long been recognized that certain unauthorized but 'fair' uses of copyrighted material do not constitute copyright infringement."). The court concluded that "fair use is a lawful use of a copyright." See also Association of American Medical Colleges v. is not an infringement of copyright.' 17 U.S.C. 2008) discusses this issue, noting that "Section 107 of the Copyright Act of 1976 provides that 'otwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work. at 577 (internal quotation marks omitted).Ī fair use is not an infringement of copyright. 1986), and “permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Campbell, 510 U.S. The fair use doctrine “creates a limited privilege in those other than the owner of a copyright to use the copyrighted material in a reasonable manner without the owner’s consent,” Fisher v. Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. § 107 defines fair use as a limitation on the exclusive rights of copyright.