The Doctrine of Fair Use Is Codified
The Copyright Act of 1976 grants copyright holders a bundle of exclusive rights, including the rights to "reproduce, perform publicly, display publicly, prepare derivative works of, and distribute copies of" the copyrighted work. Arista Records LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010) (citing 17 U.S.C. § 106). Because copyright law recognizes the need for "breathing space," Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994), however, a defendant who otherwise would have violated one or more of these exclusive rights may avoid liability if he can establish that he made "fair use" of the copyrighted material. Though of common-law origin, the doctrine of fair use is now codified at 17 U.S.C. § 107, which provides that "the fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." Swatch Group Management Services Ltd. v. Bloomberg, 742 F. 3d 17 (2nd Cir. 2014)How to Evaluate Fair Use
To evaluate whether a particular use qualifies as "fair use," we must engage in "an open-ended and context-sensitive inquiry." Blanch v. Koons, 467 F.3d 244, 251 (2d Cir.2006). The Copyright Act directs that, in determining whether a particular use is fair, "the factors to be considered shall include":
(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
(5) the effect of the use upon the potential market for or value of the copyrighted work.
Swatch Group Management Services Ltd. v. Bloomberg, 742 F. 3d 17 (2nd Cir. 2014)
THIS CASEBOOK contains a selection of 36 U. S. Court of Appeals decisions that analyze and interpret copyright law. The selection of decisions spans from January 2013 to the date of publication.