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Fair Use of Copyrighted Works

Factor 1: The Purpose and Character of the Use

The "purpose and character of the use" includes whether the new use is commercial or "nonprofit educational", or somewhere in between. For-profit enterprises generally have less latitude as to the "fairness" of their use than do non-profit enterprises.

For example, in a case where researchers at a private company were making multiple copies of articles from scientific journals, the court rejected a claim of fair use. (American Geophysical Union v. Texaco). By contrast, where a public library was making copies for research purposes, the court found fair use. (Williams & Wilkins v. U.S..)

But since most people who create receive some form of compensation for their work, commerciality is not the most important aspect in the first fair use factor.

More important than commerciality is whether a use is "transformative" or merely substitutes for the original work. A use that transforms the original in some way — for instance, a book review that quotes the original, a parody that references it, or documentary film that uses archival footage — is "fairer" than a use that merely substitutes for the original.

For instance, in an important Supreme Court case (Campbell v. Acuff-Rose Music), the Supreme Court held that parodies are transformative. The rap music group 2 Live Crew had sampled from Roy Orbison's song "O Pretty Woman". Because they were parodying the original song, the use was transformative, which the Court said would be a strong factor in favor of fair use.

A parody need not make fun of the original; it can be a form of serious criticism. In one case, the estate of Margaret Mitchell, author of Gone with the Wind, sued the novelist Alice Randall, arguing that her book The Wind Done Gone was a "derivative work" because it used the original characters, plot line, and some dialog of the original. But because The Wind Done Gone was intended to critique the racial attitudes and political viewpoint of Gone With the Wind, a federal court of appeals ruled that it was a protected parody. (SunTrust Bank v. Houghton-Mifflin.)

Copying for purely personal use is also considered under the first factor. In 1984, the Supreme court ruled that copying TV shows on a VCR, for replay at home at a later time ("time-shifting"), was fair use, even though entire shows were copied and were not transformed in any way. (Sony v. Universal City Studios.)

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