Copyright, Fair Use, and the InternetMarch 29, 2022

In the most general sense, copyright infringement is copying, or using, a work protected by copyright without permission from the copyright owner. Almost inevitably, soon after you hear the words “copyright infringement,” you will also hear the words “fair use.” Fair use is one of the most frequently discussed defenses to copyright infringement but it is also one of the least understood. This article is intended to help you understand what fair use is and what factors are used when determining if fair use is an applicable defense to copyright infringement.

Fair use is a term that comes up daily in our office and we frequently hear the term being used both correctly and incorrectly. The fair use defense has recently been raised in a number of high-profile copyright disputes and the Supreme Court recently announced they will hear a case involving the Andy Warhol Foundation and the artist’s use of an image of Prince (See Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith). As our society becomes more dependent on digital communication and social media, the potential to infringe upon copyrighted works increases. At its core, social media is all about sharing content but to many people’s dismay, stating “it’s just on my blog/Facebook/Twitter/Instagram” is not a viable legal defense to copyright infringement. Understanding what is and what isn’t considered a fair use may help you or your company avoid potential headaches in the future.

What Is Fair Use?
Again, in very general terms, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Fair use is a legal doctrine that is intended to promote freedom of expression and balance the scope of copyright protection by permitting the unlicensed use of copyright protected works in certain situations. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses including criticism, comment, news reporting, teaching, scholarship, and research as examples of activities that may qualify as fair use. Fair use is not, however, limited to those examples listed in Section 107. Courts examine the facts surrounding each particular case and balance them against four factors to determine whether or not something should be considered a fair use. The four fair use factors are:

  • Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the original copyrighted work. “Transformative” uses are more likely to be considered fair use. Transformative uses are those uses that add something new, change the meaning or “message” of a work, and do not substitute for the original use of the work. A parody of a work is often deemed transformative because it alters the expression or meaning of the original work. Additionally, Courts are more likely to find that non-profit educational and non-commercial uses are fair. This does not mean, however, that all non-profit education and non-commercial uses are fair and all commercial uses are not fair; rather, courts will balance the purpose and character of the use against the other factors below.
  • Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Because the circulation of facts or information benefits the public, Courts generally give more leeway to copy from factual works such as biographies than they would fictional works. The more creative a work is, the more protection it is likely to receive.
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. The less you take, the more likely the use will be considered a fair use. That said, some courts have found use of an entire work to be a fair use under certain circumstances. And in other situations, using even a small amount of a copyrighted work was determined not to be a fair use because the selection was a very important part, or the “heart”, of the work.
  • Effect of the use upon the potential market for or value of the copyrighted work: Another important factor is whether the use deprives the copyright owner of income or the unlicensed use harms the existing or future market for the copyright owner’s original work. In analyzing this factor, courts consider whether the use is hurting or replacing the current market for the original work and/or whether the use could cause substantial harm if it were to become widespread.

In addition to the factors listed above, Courts may consider other factors as well. No one factor is dispositive. They are each analyzed individually and then balanced with the others. Because the analysis is done on a case-by-case basis and the outcome of any given situation depends on a fact specific inquiry, there is no formula or bright line rule to ensure that a certain percentage or amount of work may be used without permission. If you find yourself on the wrong end of a copyright infringement claim or want to know if your fair use defense is viable, you can use the above factors in making an initial analysis or decision. Upon doing so, if you still have questions or need additional information, we recommend contacting someone with experience in copyright law and fair use.

Brandon W. Clark is the Chair of the Copyright, Entertainment, and Media Law Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit or contact Brandon directly via email at

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