[O]ur law recognizes that copyright is "not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public." Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L.REV. 1105, 1107 (1990). Authors Guild, Inc. v. HathiTrust, 755 F. 3d 87 (2nd Cir. 2014).
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).
Fair use is a statutory defense to infringement. The Copyright Act sets out four non-exclusive factors for a court to consider. 17 U.S.C. § 107. Kienitz v. Sconnie Nation LLC, 766 F. 3d 756 (7th Cir. 2014).
Those factors are: (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. The Supreme Court has explained that all of the statutory factors "are to be explored, and the results weighed together, in light of the purpose[] of copyright," which is "[t]o promote the Progress of Science and useful Arts." Campbell, 510 U.S. at 578, 575, 114 S.Ct. 1164 (internal citations omitted). Oracle America, Inc. v. Google Inc., 750 F. 3d 1339 (Fed. Cir. 2014).
Though mandatory, these four factors are non-exclusive. Moreover, "[a]lthough defendants bear the burden of proving that their use was fair, they need not establish that each of the factors set forth in § 107 weighs in their favor." NXIVM Corp. v. Ross Inst., 364 F.3d 471, 476-77 (2d Cir.2004) (internal citation omitted). Rather, "[a]ll [factors] are to be explored, and the results weighed together, in light of the purposes of copyright." Campbell, 510 U.S. at 578, 114 S.Ct. 1164. "The ultimate test of fair use is whether the copyright law's goal of promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it." Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 608 (2d Cir.2006) (quoting Castle Rock Entm't Inc. v. Carol Publi'g Grp., 150 F.3d 132, 141 (2d Cir. 1998)) (ellipsis omitted). Swatch Group Management Services Ltd. v. Bloomberg, ibid.
THIS CASEBOOK contains a selection of 25 U. S. Court of Appeals decisions that analyze and interpret the fair use doctrine. The selection of decisions spans from January 2012 to the date of publication.