Copyright law protects original works of authorship including literary, musical, and pictorial works as well as movies and other audiovisual works. Fair use is a legal doctrine that permits the unlicensed use of a copyrighted work under limited circumstances. The doctrine is based on the principle that the public is free to use portions of copyrighted works for purposes such as criticism, comment, news reporting, teaching, and research.  

Section 107 of the Copyright Act lists four factors for courts to evaluate in determining whether the unlicensed use of a copyrighted work qualifies as a fair use. These factors, detailed below, are evaluated by courts on a case-by-case basis.  It is very difficult to predict how a court will apply these factors to a specific set of facts. For this reason, asserting fair use should be done only as a last resort.  

PBS practice is that, whenever possible, producers should ask for permission before using a copyrighted work. In many cases, it is advisable to pay a license fee in exchange for using material rather than risk expensive litigation.

The purpose and character of the use

Courts examine whether the new work transformed the material taken from the original copyrighted work. In other words, was value added to the original work through the creation of new expression, meaning, or message? For example, a parody is transformative because it holds the original work up to ridicule. A review or commentary of the copyrighted work also might qualify. Courts also evaluate whether the use is commercial in nature or for nonprofit educational purposes. While courts are more likely to find that nonprofit educational uses are fair, this does not mean that all such uses are fair.

The nature of the copyrighted work

Courts evaluate whether the original copyrighted work is primarily factual or creative. For example, a creative work, such as a film, song, or book, may have stronger protection than a technical article or news item. Courts also consider whether the original copyrighted work is published or unpublished. (The author’s ability to be the first to publish is regarded as a valuable right.)

The amount used and its importance to the whole

Courts look at both the quantity and quality of what was taken from the original copyrighted work. In general, the less of the original work that is used, the better. But even taking a small portion of the original work can be infringing if it is the “heart” (or most important part) of the work. For example, even using very little of the work from a quantitative perspective (e.g., a minute of an hours-long hockey game) could be problematic if the qualitative taking is significant (the copied portion was the only goal of the game). Importantly, there is no set number of seconds of a song or film that automatically qualifies as fair use; each case is different.

The effect of the use on the market for the copyrighted work

Courts look at the economic impact of the unlicensed work on the original copyrighted work.  If the unlicensed work reduces demand (e.g., leads to lower sales) for the original copyrighted work by acting as a substitute, then this factor could weigh heavily in favor of the copyright owner. Market harm caused by criticism that suppresses demand for the original work is not cognizable. For example, a bad review of a movie that results in lower ticket sales is not the kind of market harm recognized by the courts. However, using a clip from a film without paying a licensing fee might not be fair because such conduct, if widespread, could deprive the copyright owner of significant revenue.

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Please note: This material is for informational purposes and does not constitute legal advice.  Stations are advised to consult with local counsel about specific questions relating to fair use.