---
title: Copyright Fair Use Doctrine
description: An overview of the legal principles and standards governing the fair use exception to copyright infringement.
keywords: [copyright, fair use, affirmative defense, transformative use, market harm]
category: law
---

## Introduction to the Fair Use Doctrine

The fair use doctrine is a critical exception to the exclusive rights granted to copyright holders under federal law. Codified in 17 U.S.C. § 107, fair use permits the limited reproduction of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship, or research without the permission of the copyright owner. This doctrine reflects the careful balance struck by Congress between incentivizing the creation of original works and allowing for their reasonable use to further the public good. 

The Supreme Court has described fair use as "the most troublesome [doctrine] in the whole law of copyright."[^1] Courts must engage in a fact-intensive, case-by-case analysis of four statutory factors to determine whether a particular use qualifies as fair: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect on the potential market for or value of the copyrighted work.[^2] The party claiming fair use bears the burden of proof on all four factors.[^3] If a court finds that the balance of these factors weighs in favor of the defendant, the otherwise infringing use will be deemed fair and non-actionable.

[^1]: Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 475 (1984) (Blackmun, J., dissenting).
[^2]: 17 U.S.C. § 107.
[^3]: Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).

## The Purpose and Character of the Use

The first fair use factor examines the "purpose and character" of the defendant's use of the copyrighted work. Courts will consider whether the use is "transformative" in nature, meaning that it adds new expression, meaning, or message to the original work, rather than merely reproducing it.[^4] Transformative uses are more likely to be deemed fair because they further the constitutional purpose of copyright law to "promote the Progress of Science and useful Arts."[^5] By contrast, uses that are merely "superseding" or "supplanting" the original work are less likely to be fair.[^6]

The commercial or nonprofit nature of a use is also relevant, but not dispositive. While commercial uses are presumptively unfair, the transformative nature of the use can outweigh the commercial purpose.[^7] Nonprofit educational and research uses, on the other hand, are more likely to be deemed fair.[^8]

[^4]: Campbell, 510 U.S. at 579.
[^5]: U.S. Const. art. I, § 8, cl. 8.
[^6]: Campbell, 510 U.S. at 579.
[^7]: Id. at 584.
[^8]: Id. at 579.

## The Nature of the Copyrighted Work

The second fair use factor considers the nature of the copyrighted work itself. Creative, expressive works, such as novels, films, or songs, receive greater copyright protection than more factual, informational works, such as news reports or instructional materials.[^9] Uses of creative works are therefore less likely to be deemed fair, as the law aims to incentivize the creation of such original expression. Conversely, the use of factual works is more likely to be considered fair, as it can further the public interest in the dissemination of information.

[^9]: Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 563 (1985).

## The Amount and Substantiality of the Portion Used

The third fair use factor examines the "amount and substantiality of the portion used in relation to the copyrighted work as a whole."[^10] Courts will consider both the quantitative amount taken, as well as the qualitative importance of the portion used. Even the use of a small excerpt may be unfair if it captures the "heart" or most important part of the work.[^11] Conversely, the use of a larger portion may be deemed fair if it is reasonably necessary to achieve a transformative purpose.[^12] The key inquiry is whether the amount taken was appropriate in light of the purpose of the use.

[^10]: 17 U.S.C. § 107(3).
[^11]: Harper & Row, 471 U.S. at 565.
[^12]: Campbell, 510 U.S. at 586-87.

## The Effect on the Potential Market

The fourth and final fair use factor examines "the effect of the use upon the potential market for or value of the copyrighted work."[^13] This factor is widely considered the most important, as it helps ensure that fair use does not undermine the central purpose of copyright law to incentivize creative expression.[^14] Courts will consider not only the market harm caused by the defendant's specific use, but also the potential for "market substitution" if the use were to become widespread.[^15] Even if a use is transformative, it may be unfair if it serves as a market replacement for the original work or derivative works.

[^13]: 17 U.S.C. § 107(4).
[^14]: Harper & Row, 471 U.S. at 566.
[^15]: Campbell, 510 U.S. at 590.

## Remedies and Defenses

If a court finds that a defendant's use does not qualify as fair use, the copyright owner may be entitled to various remedies, including injunctive relief, actual damages, and the defendant's profits attributable to the infringement.[^16] However, the fair use doctrine serves as an affirmative defense that can shield the defendant from liability, even if the use technically infringes the copyright holder's exclusive rights. The defendant bears the burden of proving that its use was fair.[^17]

[^16]: 17 U.S.C. §§ 502-05.
[^17]: Campbell, 510 U.S. at 590.

## Conclusion

The fair use doctrine plays a vital role in copyright law, allowing for the reasonable and socially beneficial use of copyrighted works without the permission of the rights holder. By carefully balancing the interests of copyright owners and the public, the doctrine helps to promote the progress of science and the arts as envisioned by the Constitution. While the fair use analysis can be complex and fact-intensive, the careful application of the statutory factors by courts helps to maintain this crucial balance.