Prior to the adoption and implementation of the Copyright Act of 1976, the doctrine of “fair use” was not explicitly stated in the laws of the United States. But the principles of “fair use” were recognized by the courts in the United States as being implied by Article I, section 8, clause 8 of the Constitution of the United States, and the Copyright Act of 1790, 1 Stat. 124 (1790). For almost two centuries implicit judicial recognition provided sufficient avenues to permit the “fair use” of copyrighted materials for such noble purposes as education and the development of the arts and sciences within the United States, id: Campbell v. Acuff Rose Music, 510 U.S. 569 (1994).
However, the rapid progress and development of the nation engendered the need for the codification of the principles underlying the ”fair use” doctrine into the statutes through the legislative process by Congress as illustrated by the Court of Appeals for the Second Circuit in On Davis v. the Gap. As noted in Campbell and On Davis, the formal codification of the “fair use doctrine” by the legislature occurred only with the enactment of the Copyright Act of 1976. Section 107 of the act established a multi-faceted test consisting of four factors to be weighed in making determinations regarding the question of whether or not the use made of a work by persons other than author constitutes a “fair use.” The four factors enumerated in 17 U.S.C. § 107 (2017) were as follows:
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 (2017)
Numerous courts have held that the factors set forth in 17 U.S.C. § 107 (2017) are not meant to be construed as an exhaustive list of the factors to be weighed in making “fair use” determinations, but are intended to serve as a baseline to be applied in a case by case manner. See: Harper Row, Publishers v. Nation Enter., 471 U.S. 539 (1985) Letterese v. World Inst. of Scientology, 533 F.3d 1287, (11 Cir. 2008) Copr.L.Dec. P 29,589, 87 U.S.P.Q. 2d 1563, 21 Fla. L. Weekly Fed. C 911 (2008); Leadsinger Inc., BMG Music Publ’g., 512 F.3d 522, (9 Cir. 2008) 2007 Copr.L.Dec. P 29,499, 85 U.S.P.Q. 2d 1257, 08 Cal. Daily Op. Serv. 68, 2008 Daily Journal D.A.R. 36 (2008); Bouchat v. Baltimore Ravens Ltd., 587 F.Supp.2d 686, (D. Md. 2008); Warner Bros. Entertainment v RDR Books, 575 F.Supp.2d 513, 2008 Copr.L.Dec. P 29,616, 88 U.S.P.Q.2d 1723 (S.D.N.Y. 2008); Thornton v. J Jargon Co., 580 F.Supp.2d 1261 (M.D. Fla. 2008).
The four statutorily mandated factors possess a multifaceted nature each of which gives rise to several questions which require answers before any conclusions regarding the “fair use” of an object can be reached. Before, addressing the questions raised by the four factors described above, a word must be said about the manner in which, the individual questions are considered in relationship to the whole. It is well settled that the elements elucidated in 17 U.S.C. § 107 (2017) must be evaluated as a whole with due consideration being afforded to the context of, and circumstances surrounding the whole, rather than by attempting to isolate each of the constituent parts and analyzing them as independent abstract propositions detached from the whole, id: Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985)) and Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 799-800 (9th Cir. 2003) (citing Campbell, 510
U.S. at 575-76). Leadsinger v. BMG Music Publ’g, 512 F.3d 522, (9 Cir. 2008)
2007 Copr.L.Dec. P 29,499, 85 U.S.P.Q. 2d 1257, 08 Cal. Daily Op. Serv. 68, 2008
Daily Journal D.A.R. 36 (2008).
When examining questions of whether copyrighted material has been subjected to a “fair use,” the first component addressed relates to the purpose and character of the use and possesses a minimum of two subsidiary facets: One, is the use of the object intended for commercial purposes, or is the use of the object intended to advance nonprofit purposes. Two are the emendations made to the original transformative, do they alter significantly and substantively the original object, see: Campbell v. Acuff
Rose Music, 510 U.S. 569 (1994).
The second aspect that necessitate consideration, while performing a “fair use” investigation are queries inextricably linked to the nature of the original copyrighted work. When studying whether a composition represents a “fair use” under the law, a valid test demands that consideration be accorded to the original copyrighted source material. An evaluation of the original source necessarily entails a discussion of the original opus and its relationship to the subject of the derivative work. Underlying, this ingredient of the “fair use” test exist a minimum of two propositions. First, what type of composition was the original because, the courts have long held that nature of the original source has a bearing on the derivative; and Second, was the original a published or an unpublished work, see: Campbell v. Acuff Rose Music, 510 U.S. 569
(1994)
After treating the subjects connected to the nature of the original compositions, the parties responsible for determining if “fair use” has occurred, then turn their attention to the third
aspect of the test contained in 17 U.S.C. § 107 (2017). This facet concerns questions related to the amount and substantiality of the original used, id: Harper Row, Publishers v. Nation
Enter., 471 U.S. 539 (1985)
The final element that requires consideration when treating questions of “fair use” examines the impact of the use on the
marketplace in general, and how the use of the original material in a derivative work will affect the inherent value of the original work, see: Harper Row,
Publishers v. Nation Enter., 471 U.S. 539 (1985)
In applying the “fair use” test discussed in the preceding pages both attorneys and paralegals need to be mindful of Justices Brennan’s warning against applying the test either a manner that is overly narrow or excessively broad. Great care and caution must be used when employing the test. A carless and uninformed application of the "fair use" doctrine by legal professionals possesses the potential to lead to a society in which the creative impetus is allowed to run rampant because, there exists no checks to prevent from people from illegally appropriating the work of others and claiming it as their own. Conversely, an improper application of the doctrine could serve to stifle the creative spirit.
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