This post is excerpted from the upcoming e-treatise “Wassom on Social Media Law.”
Copyright exists in order “to promote the Progress of Science and useful Arts.” It accomplishes this by giving authors an economic incentive to create new works and share them with the public. But private control over the use of expressive works doesn’t always promote progress; indeed, giving copyright owners too much control over the works they’ve created not only impedes societal progress, but also creates tension with the fundamental principles of free speech and the exchange of ideas that underlies the First Amendment and our entire democratic system.
For these reasons, the Copyright Act includes the “fair use” doctrine. The fair use defense acts as a safety valve that allows certain socially beneficial uses of copyrighted works to escape the control of their owners.
Identifying the purpose of fair use is easy; figuring out whether any particular use of a certain work is fair is another story entirely. The Copyright Act doesn’t define what is fair, but rather provides courts with guidelines to apply on a case-by-case basis. For this reason, it is never safe for anyone to assume that what they’re doing definitely is a fair use.
The fair use defense favors such motivations as “as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” It also provides four factors to guide the court’s analysis:
(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.