The purpose of copyright law, according to the U.S. Constitution, is to “promote the Progress of Science and useful Arts,” by granting authors the exclusive right to control their works “for limited Times.” Over the years, with successive amendments of the Copyright Act, that “limited time” has grown longer and longer, and the scope of exclusive control has increased. But the Copyright Act has also evolved certain exceptions that permit courts to avoid applying it rigidly when doing so would stifle the creativity it is designed to foster. The best known of these is the “fair use” doctrine, which first arose at common law and is now codified in §107 of the Copyright Act. But although the fair use doctrine is certainly well known, it is not always well understood—not even by the courts that have to interpret it.

Fair Use Fundamentals

Section 107 is a curious statute. It does not really define fair use; it merely states that the “fair use” of a work “for purposes such as criticism, comment, news reporting, teaching … scholarship or research, is not an infringement of copyright.” It then lays out four non-exclusive factors that courts should look at to determine whether a particular use is protected by the exception: “(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.”

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